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[ { "docid": "23283076", "title": "", "text": "194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). Based on relevant case law in this and other circuits, as well as unpublished Washington opinions, defendants reasonably believed that their policy, and actions in adopting and enforcing the catalog and non-subscription bulk mail restrictions were lawful. See Sorrels v. McKee, 290 F.3d 965, 971 (9th. Cir.2002) (citing Cook, 238 F.3d at 1152) (unpublished district court decisions may be considered for purposes of determining qualified immunity). While the second sentence supports only their arguments based on the non-subscription bulk mail and catalog claims, the first sentence of the argument does not limit the request in any way. We are persuaded that the officials did not waive their argument that they are entitled to qualified immunity from the claim concerning third-party legal materials. PLN also argues that because the officials dispute the factual merits of the third-party legal materials claim, rather than the legal basis, that claim is outside the scope of this Court’s interlocutory jurisdiction. We disagree. As noted above, cases in this circuit establish that when disputed facts exist, we have jurisdiction to decide the claim, but must assume that the version of events offered by the nonmoving party is correct. Wilkins, 350 F.3d at 951. Therefore, we have jurisdiction to hear the appeal of the district court’s denial of qualified immunity. Ill We review de novo a district court’s decision to grant or deny summary judgment. Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir.2000). We apply the same standard used by the trial court under Rule 56 of the Federal Rules of Civil Procedure. Meade v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir.1999). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131(9th Cir.2000) (en banc). We also review a grant or denial of qualified immunity de novo. Bahrampour v. Lampert, 356 F.3d 969, 976 (9th Cir.2004). A We first consider whether" } ]

[ { "docid": "22252769", "title": "", "text": "for the use of excessive force in violation of the Fourth Amendment. After extended motion practice, which included some thirty-six motions filed by Tracy, proceeding pro se, the magistrate judge assigned to the case issued a report and recommendation urging that a motion for summary judgment with regard to all of Tracy’s claims filed by Defendants-Counter-Claimants-Appellees be granted in full. The magistrate judge, after noting that Tracy had participated in at least ten previous federal and state actions, had engaged in substantial motion practice in this action, and had demonstrated substantial competence in the course of that motion practice, first recommended that Tracy should be denied the solicitude ordinarily afforded by federal courts to pro se litigants. Turning then to Tracy’s substantive claims, the magistrate judge concluded with regard to the excessive force claims at issue in this appeal that, even viewing the evidence in the light most favorable to Tracy, Officer Freshwater was entitled to qualified immunity as his actions were objectively reasonable and, accordingly, did not amount to a constitutional violation. Over Tracy’s objection, the district court adopted the report and recommendation in full and judgment was entered in favor of Defendants-Counter-Claimants-Appellees. Tracy subsequently filed a motion for reconsideration, which the district court denied on the ground that it merely sought to relitigate the same issues already decided in the previous order. This appeal followed. DISCUSSION A. Excessive Force Tracy first challenges the district court’s conclusion that Freshwater was entitled to summary judgment on all of Tracy’s excessive force claims. We review a grant of summary judgment de novo, and in so doing, we construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. See Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427 (2d Cir.2009); Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir.2007). Summary judgment is warranted only where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Cordiano v. Metacon Gun Club, Inc.," }, { "docid": "14433134", "title": "", "text": "PREGERSON, Circuit Judge: Nevada state prisoner Lester Tellis appeals pro se from a district court order granting summary judgment in favor of defendant prison officials. Tellis brought this action under 42 U.S.C. § 1983, alleging that prison authorities violated his due process rights by withholding interest earned on funds in his personal prison bank account. We reverse. BACKGROUND Lester Tellis is a Nevada state prisoner serving two consecutive life terms with the possibility of parole and an additional consecutive term of 109 years. He currently has $163.72 on deposit in the Nevada “prisoners’ personal property fund.” Tellis twice requested that prison officials credit his personal property account with interest actually earned on those funds. Defendants refused, claiming that Nevada Revised Statute 209.241 grants the Director of Prisons authority to use interest earned on prisoners’ personal accounts at the director’s discretion. Tellis then filed a pro se complaint under 42 U.S.C. § 1983 against various prison officials, alleging that officials violated his due process rights by failing to credit his account with interest earned on his funds. On cross-motions for summary judgment, the district court ruled that Tellis failed to establish a protected property interest in interest earned on his funds. Judgment was entered for defendants, and Tellis timely appealed. STANDARD OF REVIEW We review de novo a district court’s grant of summary judgment. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992). Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Hutchinson v. United States, 838 F.2d 390, 892 (9th Cir.1988)). In this case, the evidentiary materials submitted by the parties on cross-motions for summary judgment raise no genuine issue of material fact. Therefore, we review the judgment of the court below to determine whether the undisputed facts entitled defendants to judgment as a matter of law. DISCUSSION The Fifth Amendment declares that “private property [shall not] be taken for public use, without just compensation.” U.S." }, { "docid": "17462563", "title": "", "text": "shortly thereafter. By this time it was March 21, and Schneyder had been locked up for 54 days — 48 of them after the February 2 continuance. Schneyder sued Smith and the Philadelphia District Attorney’s office, filing a complaint which included claims under 42 U.S.C. § 1983 and state law. Only the § 1983 claim against Smith remains in the case; it alleges that Smith violated Schneyder’s Fourth Amendment rights “by failing to notify Judge Means or take any steps to have plaintiff released from custody knowing that she would not be needed as a witness in the underlying criminal case for several more months.” The District Court initially granted Smith’s Rule 12 motion to dismiss the § 1983 claim on the .basis that she was entitled to absolute prosecutorial immunity, but a panel of this court reversed. Odd v. Malone, 538 F.3d 202 (3d Cir.2008). After remand and discovery, Smith invoked both absolute and qualified immunity and moved for summary judgment. The District Court rejected Smith’s arguments and denied the motion. Schneyder v. Smith, 709 F.Supp.2d 368 (E.D.Pa.2010). This appeal ensued. II We have appellate jurisdiction under the collateral order doctrine: “28 U.S.C. §. 1291 confers appellate jurisdiction over the District Court’s denial, at the summary-judgment stage, of [a] defendant’s] claim that [she is] entitled to absolute or qualified immunity, to the extent that denial turns on questions of law.” Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir.2009) (citations omitted). There are no material factual disputes, Smith having conceded various of the plaintiffs factual averments for purposes of this motion. We review the District Court’s denial of summary judgment de novo, applying the same test that the District Court should have applied and viewing the facts in the light most favorable to the nonmoving party. Id. Ill “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172" }, { "docid": "2863760", "title": "", "text": "then addressed Smith’s claim to qualified immunity. The court stated that plaintiffs had not presented, and it could not find, any “state or federal opinion published before May, 1990, when the alleged misconduct took place, that supports plaintiffs’ view that they have a Fourteenth Amendment substantive due process right in the context of high speed police pursuits.” The court therefore found that the law regarding Lewis’s Fourteenth Amendment right to life and personal security was not clearly established and granted summary judgment in favor of Officer Smith on qualified immunity grounds. Second, the court granted summary judgment in favor of the county and the sheriffs department on plaintiffs’ claim that both entities had failed to adequately train sheriffs deputies in high-speed pursuits. The court found that, although Smith had received no training in pursuits, he had received training in high-speed driving and that the driving skills overlapped to some extent. The court thus concluded that the training procedures were “not so inherently inadequate” that the sheriffs department and the county could be held liable under § 1983 for inadequate training. Third, the court granted summary judgment in favor of the sheriffs department, finding that its pursuit policy was not deliberately indifferent to Lewis’s constitutional rights. The court reasoned that the department’s policy exceeded California statutory standards and carefully delineated the factors an officer should consider before initiating or continuing a high-speed pursuit. Finally, with respect to plaintiffs’ state law negligence claims, the court found Officer Smith immune from suit under California Vehicle Code § 17004. Because the court dismissed all federal claims, it declined to decide whether the county and the sheriffs department were also immune under California law. The court then dismissed without prejudice the state claims against the county and sheriffs department to allow plaintiffs to file those claims in state court. Plaintiffs appeal. II. We review de novo the district court’s grant of summary judgment. We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied 'the" }, { "docid": "23118948", "title": "", "text": "court correctly noted that LSO was the prevailing party with respect to the TRO because the TRO allowed the convention and art exhibition to take place. It explained that “[t]he legal relationship between the Defendants and LSO was legally altered because the TRO prevented the Defendants from further interfering with the Art Exhibition.” Thus, the district court did not abuse its discretion in awarding fees to LSO. Because we reverse the district court’s rulings in favor of the Officials on several of the claims contained in LSO’s amended complaint, a new determination of “prevailing party” status with respect to these claims will have to be made at the conclusion of the proceedings on remand. Thus, we do not reach LSO’s appeal of the district court’s decision awarding costs to the Officials. CONCLUSION We reverse the district court’s dismissal of LSO’s demands for prospective relief on standing grounds and its grant of summary judgment to the Officials on the grounds of qualified immunity. We affirm the district court’s award of fees to LSO for services related to obtaining the TRO. We remand for further proceedings consistent with this opinion. REVERSED in part, AFFIRMED in part, and REMANDED. Costs to Appellant LSO, Ltd. . We also affirm the district court’s award of attorneys' fees to LSO with respect to the TRO. We do not consider LSO's appeal of the district court's award of costs to the Officials because a new determination of which party \"prevailed” will have to be made at the conclusion of proceedings on remand. . In reviewing the district court’s decision dismissing claims pursuant to Fed.R.Civ.P. 12(b)(6), we must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmov-ing party. See Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). In reviewing the district court’s order granting summary judgment, we view the evidence in the light most favorable to the nonmoving party. See Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.1999). LSO was the nonmoving party on the issues of standing and qualified immunity. .LSO says it" }, { "docid": "3404504", "title": "", "text": "both received ten-year prison terms. In 2008, DNA testing revealed that the blood and semen collected from Wilson’s apartment matched Bruce Allen Smith, a person wholly unconnected to the Plaintiffs. As a result of this new testing, the Nebraska Pardons Board granted Plaintiffs full pardons. A more thorough development of the facts of this case may be found in the background section prepared by the district court, from which we have borrowed heavily for our own overview of the facts herein. See Dean v. Smith, 805 F.Supp.2d 750, 756-834 (D.Neb.2011). Although Plaintiffs contend the district court’s narrative is based on Defendants’ version of events, we do not discern any facts included in the district court’s background that are unsupported by the evidence. We do, however, disagree with certain inferences drawn by the district court from this evidence, as demonstrated by our characterization of some of the background facts and by our analysis below. II. Qualified Immunity At the heart of their appeal, Taylor, Winslow, Dean, and Gonzalez argue the district court erred in holding that Defendants did not violate clearly established Fourteenth Amendment due process rights. “Summary judgment is appropriate when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review de novo summary judgment where granted on the basis of qualified immunity.” Coates v. Powell, 639 F.3d 471, 475-76 (8th Cir.) (internal citation omitted), cert. denied, — U.S.-, 132 S.Ct. 412, 181 L.Ed.2d 269 (2011). “The party asserting immunity always has the burden to establish the relevant predicate facts, and at the summary judgment stage, the nonmoving party is given the benefit of all reasonable inferences.” White v. McKinley, 519 F.3d 806, 813 (8th Cir.2008). “Qualified immunity shields government officials from [personal] liability in a § 1983 action unless the official’s conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.2009). Evaluating a claim of qual" }, { "docid": "22833369", "title": "", "text": "SEYMOUR, Circuit Judge. Plaintiff Jerry Wayne Smith filed suit alleging defendants violated numerous of his constitutional rights, including deprivation of his property without due process of law, interference with his mail, denial of procedural due process during the course of his disciplinary hearings, and conspiring to deny him access to the courts. As part of the conspiracy claim, Smith alleged defendants placed him in disciplinary segregation in retaliation for his ongoing litigation against prison officials and his “jailhouse lawyering.” Smith’s amended complaint raised these allegations pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 (1982). The district court entered summary judgment against Smith on these claims, and denied his motion for partial summary judgment. Smith appeals from both these judgments. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. I. We review de novo the district court’s grant of summary judgment: “In reviewing a summary judgment order, the appellate court applies the same standard employed by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure. When a motion for summary judgment is granted, it is the appellate court’s duty to examine the record to determine if any genuine issue of material fact was in dispute; if not, the court must decide if the substantive law was correctly applied.” Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988) (citation omitted). Viewing the evidence in the light most favorable to the party opposing the motion, we must determine “ ‘whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.’ ” Smith Machinery Co. v. Hesston Corp., 878 F.2d 1290, 1294 (10th Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Accord Missouri Pac. R.R. v. Kansas Gas & Elec. Co., 862 F.2d 796, 798 (10th Cir.1988). If so, summary judgment in favor of the defendant is unwarranted. Bearing in mind this standard of review, we address plaintiffs claims seriatim. A. Deprivation of Property Without Due Process Smith complains" }, { "docid": "23069308", "title": "", "text": "Smith’s estate, sued Marion County and Sheriff Stringer, Hollins, Louge, Thornhill, and Bryant in their individual and official capacities under 42 U.S.C. § 1983. On July 19, 2006, the district court awarded summary judgment to each defendant sued in his individual capacity on the basis of qualified immunity. However, on August 29, 2007, the district court denied summary judgment to the individual defendants in their official capacities and to Marion County, reasoning that genuine issues of material fact existed regarding whether Marion County was liable under § 1983 for practicing a custom or policy of deliberate indifference toward the needs of its pretrial detainees. The case went to trial on November 13, 2007. After Brumfield rested her case, the district court directed a verdict in favor of all remaining defendants based on Brum-field’s failure to prove a violation of any constitutional right. The district court also found a lack of causal connection between the failure to train or implement policy and Smith’s suicide, and no evidence demonstrating a pattern of similar prior incidences necessary to demonstrate objective deliberate indifference by Marion County. The district court entered a final order and judgment disposing of Brum-field’s claims. Brumfield now appeals, arguing that the district court erred in three respects: (1) by granting summary judgment to Sheriff Stringer in his individual capacity on the basis of qualified immunity; (2) by prohibiting Brumfield from presenting expert testimony indicating that Smith was alive when the paramedics arrived at the Old Jail; and (3) by directing a verdict for Marion County and all the individual defendants in their official capacities. ' II. DISCUSSION A. Sheriff Stringer’s Liability in his Individual Capacity 1. Standard of Review We review a grant of summary judgment de novo, applying the same standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006). Our inquiry “is limited to the summary judgment record before the trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n. 10 (5th Cir.1992). We must view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v." }, { "docid": "3455014", "title": "", "text": "the opponent of admission has the burden to rebut. See United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979). The district court properly found that Smith presented no evidence “to dispute that the recording is what the defendants claim[ed] it to be.” Smith’s only rebuttal is that he did not hear the siren, therefore there may have been a problem with the fidelity of the siren system or the siren was not played. Smith’s contentions are merely “general, conclusory allegations based upon mere suspicions,” which are not enough to rebut the proponent’s foundation. Id. (quotation omitted). Stated another way, “[m]erely raising the possibility (however hypothetical) of tampering is not sufficient to render evidence inadmissible.” Brown, 136 F.3d at 1182 (citation omitted). Therefore, it was appropriate to admit the tape in determining summary judgment, and the district court correctly found that the tape was authentic and admissible. Smith raises an assortment of other arguments regarding the authenticity and admissibility of the tape, however, we decline to address them for they are without merit. II. Review of the Summary Judgment Grant We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences from the record in the light most favorable to the nonmovant. Summary judgment is proper when the record reveals no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A. Unlawful Search and Seizure Claim Smith claims that the officers violated his rights by searching him and the car’s glove box, passenger compartment, and trunk. The district court held that the defendants were entitled to qualified immunity because a reasonable person would not find that the officers violated Smith’s clearly established constitutional rights. Police officers are entitled to qualified immunity for actions taken during a stop or arrest ‘“insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir.1993) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct." }, { "docid": "22377313", "title": "", "text": "challenged the dismissal of the state law claims or the grant of summary judgment in favor of the City of Wenatchee, DSHS, or Tilly. Consequently, the only matter now before this court is Devereaux’s challenge to the grant of summary judgment in favor of Abbey, Alexander, Carrow, and Wood (hereinafter “Defendants”) on the § 1983 claim. The district court granted summary judgment to Defendants on that claim on the basis of qualified immunity, stating that Devereaux has “not cite[d], nor has this Court’s research revealed, case law to suggest that any of the State Defendants violated Plaintiffs clearly established rights based upon the evidence in the record.” II. STANDARD OF REVIEW We review a grant of summary judgment de novo. Werner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). III. DISCUSSION Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. Qualified immunity, however, shields § 1983 defendants “[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, “[tjaken in the light most favorable to the party asserting injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 2156. If the plaintiffs factual allegations do add up to a violation of the plaintiffs federal rights, then the court must proceed to determine whether the right was “clearly established,” i.e., whether the" }, { "docid": "12218393", "title": "", "text": "prisoners, we affirm the district court’s grant of summary judgment for Appellees on the prisoners’ ADA and Rehabilitation Act claims. III. After the district court granted summary judgment for Appellees on the prisoners’ ADA and Rehabilitation Act claims, a hearing was held on Appellees’ motion for summary judgment on the Eighth Amendment claims of prisoners Amos, William Smith, Michael Smith, Megginson, Ralph, and Prymerman, brought under 42 U.S.C.A. § 1983 (West Supp.1997). At the close of the hearing, the district court ordered that the prisoners’ constitutional claims be dismissed. Thereafter, the court issued an amended final order granting Appellees’ motion for summary judgment “as to all claims.” (J.A. at 136.) The six prisoners contend that the district court erred in granting summary judgment on their Eighth Amendment claims. They argue that they presented evidence of inadequate medical care sufficient to withstand summary judgment. According to the prisoners, the evidence viewed in the light most favorable to them establishes that Appellees Lanham, the Commissioner of the Maryland Division of- Corrections, and Galley, the Warden of RCI, knew about but failed to take appropriate measures to remedy serious risks to their health. We review a district court’s grant of summary judgment de novo. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is proper only if no genuine issue of material fact is in dispute. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact is in dispute, “[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, 2513, 91 L.Ed.2d 202 (1986). A. The prisoners sued MDPSCS; RCI; Lanham, in his official capacity as the Commissioner of the Maryland Division of Corrections; and Galley, in his official capacity as the Warden of RCI. Lanham and Galley contend that the only Appellees in this case are two state institutions and two individuals in their" }, { "docid": "5465977", "title": "", "text": "When screening a prisoner complaint, the district court must examine both § 1915(e)(2) and § 1915A. If the civil action seeks redress from a governmental entity, officer, or employee, the district court must dismiss the complaint, or any portion of the complaint, which (a) is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (b) seeks monetary relief from a defendant who is immune from monetary relief. 28 U.S.C. §§ 1915(e)(2), 1915A. The District Court in this case dismissed a number of Smith’s claims for failure to state a claim upon which relief could be granted. The District Court ruled that Smith’s claims failed either because they were based on non-existent constitutional rights or else Smith failed to allege facts sufficient to state a cognizable constitutional claim. (J.A. 49-51). Upon review of Smith’s complaint and the lower court’s decision, this Court concludes that the District Court correctly applied 28 U.S.C. § 1915. III. SUMMARY JUDGMENT. Smith also appeals from the District Court’s opinion and order granting the Appellees’ motion for summary judgment on Smith’s First Amendment retaliation claim. We review a grant of summary judgment de novo. Johnson v. United States Postal Serv., 64 F.3d 233, 236 (6th Cir.1995). The party seeking summary judgment has the initial burden of showing that there is no genuine issue as to any material fact, and we will reverse a grant of summary judgment if the nonmoving party has presented evidence of specific facts, which, viewed in the most favorable light, indicates that there is a genuine issue for trial. Id. Although the nonmoving party “may not rest upon the mere allegations or denials” of his pleading, Fed. R.Civ.P. 56(e), a verified complaint or additional affidavit, as presented in this case, satisfies the burden of the nonmovant to respond. Summary judgment is appropriate “if the pleadings ... and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court" }, { "docid": "23606905", "title": "", "text": "false-arrest or excessive-force claims, and that the court’s decision to remand the remaining state-law claims against Del City should be reversed so that all claims can be heard together in federal court. With respect to the motion to continue, she argues that the district court erred by not giving her more time to build evidentiary support for the damages aspect of her case. As discussed below, we conclude that the district court did not err in granting summary judgment in favor of Officer Beech on his qualified-immunity defense to Ms. Koch’s claims. Because neither of Ms. Koch’s federal claims survive and the district court did not abuse its discretion in remanding the remaining state-law claims, we affirm the district court’s summary judgment order. We further conclude that the district court did not abuse its discretion in denying Ms. Koch’s motion to continue, and therefore also affirm the district court’s January 2008 order. A. The District Court’s Grant of Summary Judgment in favor of Officer Beech 1. Standard of Review We review the district court’s summary judgment order de novo. Weber v. GE Grp. Life Assur. Co., 541 F.3d 1002, 1010 (10th Cir.2008). Summary judgment should be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2) (2009); cf Fed. R.Civ.P. 56(a) (effective Dec. 1, 2010). “Judgment as a matter of law is appropriate when the nonmoving party has failed to make a sufficient showing on an essential element of his or her case with respect to which he or she has the burden of proof.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir.2011) (internal quotation marks omitted). However, “[o]ur review of summary judgment orders in the qualified immunity context differs from that applicable to review of other summary judgment decisions.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312" }, { "docid": "23254599", "title": "", "text": "City and County of Honolulu. Ms. Long sought damages under 42 U.S.C. § 1983 for use of excessive force against Long, the city’s failure to render medical aid, and the municipality’s failure to train officers on the use of deadly force. She also brought related state law claims. Defendants moved for summary judgment, arguing that Sterling was entitled to qualified immunity and that no evidence existed to support municipal liability. The motion was denied without prejudice to allow for more discovery. Defendants later renewed their motion. The district court then granted the Defendants’ motion, holding that there was no constitutional violation and no basis for municipal liability, and entered final judgment. Ms. Long timely appeals. III.Standard of Review and Jurisdiction We review the grant of a motion for summary judgment de novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007). The district court’s decision on qualified immunity is also reviewed de novo. Id. Under this standard, the facts are viewed in the light most favorable to the nonmoving party, and all reasonable inferences are drawn in that party’s favor. Brosseau v. Haugen, 543 U.S. 194, 195 n. 2, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004); Blankenhorn, 485 F.3d at 470. In a Fourth Amendment excessive force case, “defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s use of force was objectively reasonable under the circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). We have jurisdiction under 28 U.S.C. § 1291. IV.Discussion A. Qualified Immunity The defense of qualified immunity “shields government officials performing discretionary functions from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Scott, 39 F.3d at 914 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Where an officer raises this defense, we undertake a two part analysis. First, we ask, “Taken in the light most favorable to the party asserting the" }, { "docid": "23385621", "title": "", "text": "from the Uniform Policy through established administrative channels. Other Plaintiffs-Appellants refused to respond to the questionnaire based on constitutional or personal objections. Plaintiffs-Appellants then brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and damages. Relevant to this appeal, Plaintiffs-Appellants bring three separate, substantive constitutional challenges to the Uniform Policy. First, the sfeide-nf-Plaintiffs-Appel-lants subject to the Uniform Policy assert that the compulsory wearing of uniforms violates the First Amendment because the wearing of uniforms is both a form of coerced speech, in that, it compels them to express ideas with which they may not agree, and, at the same time, it is an infringement on free expression, in that it prevents them from freely expressing par ticular messages they do wish to convey. Second, the parewi-Plaintiffs-Appellants claim that the compulsory Uniform Policy violates their “fundamental” right to control the upbringing and education of their children in violation of the Fourteenth Amendment. Finally, four family-Plaintiffs-Appellants (parents seeking relief on behalf of their children), who sought exemption from the Uniform Policy on religious grounds, allege that the existing opt-out procedures restrict their freedom to exercise their religious beliefs in violation of the Free Exercise Clause of the First Amendment because the opt-out questionnaire and hearing procedures impermissi-bly delve into the substance of their religious beliefs. Further, these four family-Plaintiffs-Appellants contend that the opt-out procedures favor certain established religions at the expense of other religions and thus violate the Establishment Clause of the First Amendment. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and moved for summary judgment based on qualified immunity. The district court treated the motion to dismiss as a motion for summary judgment and granted summary judgment in favor of Defendants, concluding that no constitutional violation occurred in this case. The district court did not reach the qualified immunity issue. Plaintiffs timely appeal the grant of summary judgment. II. STANDARD OF REVIEW This court reviews a grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Smith v. Brenoettsy, 158 F.3d 908, 911 (5th" }, { "docid": "98094", "title": "", "text": "on Horphag’s trademark dilution and remanded it for reconsideration of the claim in light of Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), which altered the showing of dilution required for an anti-dilution claim. See id. at *1041. We also directed the lower court to reconsider the portion of the attorneys’ fees analysis that related to the dilution claim. See id. at 1042. On November 24, 2003, Horphag filed a motion for summary judgment with respect to its dilution claim. Horphag argued that evidence already admitted at trial conclusively proved that Garcia actually diluted its trademark. On January 22, 2004, the district court granted Horphag’s motion for summary judgment. It concluded that none of Garcia’s purported “material questions of fact” were relevant and that Horphag was entitled to summary judgment as a matter of law. The court also reinstated the award of attorneys’ fees. Garcia appealed. II. Standard of Review A grant of summary judgment is reviewed de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). In reviewing an order granting summary judgment, we view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor. See Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir.2004). We must determine whether there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Once the moving party meets its initial burden, however, the burden shifts to the non-moving party to “set forth, by affidavit or as otherwise provided in Rule 56,’specific facts showing that there is a genuine issue for trial.’” Id. (citing Fed.R.Civ.P. 56(e)) (emphasis omitted). In reviewing an order granting summary judgment, this court may not weigh the evidence or pass on the credibility" }, { "docid": "18131173", "title": "", "text": "Masons allege that the video camera captured the following exchange: Faul: Where was the gun when it was all said and done and who took it out? And where was it at? Garcia: [Lafayette Police Officer] Bart [Ryder] took it. Faul: Was it in his hand? Garcia: Best as I can figure. The Masons, individually and on behalf of their son, Mr. Mason, sued Faul, Chief Craft,, and Lafayette. They brought claims under 42 U.S.C. § 1983 alleging Faul (1) used excessive force in violation of the Fourth and Fourteenth Amendments; (2) deprived Mr. Mason of substantive due process under the Fourteenth Amendment by engaging in actions that “shock the conscience;” (3) and violated Mr. Mason’s Eighth Amendment and due process rights by acting with deliberate indifference to his medical needs after the shooting. The Masons brought Monell claims against Lafayette and Craft. The complaint also included state law claims against the three defendants. Faul pled qualified immunity. The district court granted the defendants’ motion for summary judgment and dismissed all claims. The Masons appeal. II We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” When reviewing a motion for summary judgment, we must “must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” No genuine issue of disput ed fact exists “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” III A plaintiff suing under § 1983 must “(1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” A § 1983 suit may be brought against a person in his or her individual or official capacity as well as against governmental entities." }, { "docid": "22377312", "title": "", "text": "with minor children. Devereaux then commenced this action under 42 U.S.C. § 1983, naming the following parties as defendants: Perez; Wood; DSHS; the City of Wenatchee; Timothy David Abbey, Laurie Alexander, and Kate Carrow, all of whom were employees of DSHS; Kenneth Badgley, in his official capacity as police chief for the Wenatchee Police Department; and Earl Tilly, the Wenatchee Public Safety Commissioner. Devereaux alleged violations of his federal rights and also brought several state law claims. The defendants moved for summary judgment on the § 1983 claim, and the district court granted their motions. It declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice to their being prosecuted in state court. See 28 U.S.C. § 1367(c). This timely appeal followed. A divided panel of this court affirmed the district court. See Devereaux I, 218 F.3d at 1045. We subsequently granted rehearing en banc. 235 F.3d at 1206. Pursuant to a settlement agreement, Devereaux’s appeal with respect to Perez and Badgley was dismissed with prejudice. In addition, Devereaux has not challenged the dismissal of the state law claims or the grant of summary judgment in favor of the City of Wenatchee, DSHS, or Tilly. Consequently, the only matter now before this court is Devereaux’s challenge to the grant of summary judgment in favor of Abbey, Alexander, Carrow, and Wood (hereinafter “Defendants”) on the § 1983 claim. The district court granted summary judgment to Defendants on that claim on the basis of qualified immunity, stating that Devereaux has “not cite[d], nor has this Court’s research revealed, case law to suggest that any of the State Defendants violated Plaintiffs clearly established rights based upon the evidence in the record.” II. STANDARD OF REVIEW We review a grant of summary judgment de novo. Werner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000)" }, { "docid": "23535524", "title": "", "text": "It also assigns to each game one of roughly thirty content descriptors, which include “Animated Blood,” “Blood and Gore,” “Cartoon Violence,” “Crude Humor,” “Fantasy Violence,” “Intense Violence,” “Language,” “Suggestive Themes,” and “Sexual Violence.” C. On October 17, 2005, before the Act took effect, Plaintiffs filed suit against the Governor, the Attorney General, and three city and county defendants, all in their official capacities, for declaratory relief against the Act on the grounds that it violated 42 U.S.C. § 1983 and the First and Fourteenth Amendments. Plaintiffs argued that the Act unconstitutionally restricted freedom of expression on its face based on content regulation and the labeling requirement, was unconstitutionally vague, and violated equal protection. The district court granted Plaintiffs’ motion for a preliminary injunction. Video Software Dealers Ass’n v. Schwarzenegger, 401 F.Supp.2d 1034 (N.D.Cal.2005). Subsequently, the parties filed cross-motions for summary judgment. The district court granted Plaintiffs’ motion and denied the State’s cross-motion. See Video Software Dealers Ass’n v. Schwarzenegger, No. C-05-04188, 2007 WL 2261546 (N.D.Cal. Aug. 6, 2007). The district court’s sum mary judgment order invalidated the Act under strict scrutiny, and did not reach Plaintiffs’ claims regarding vagueness, equal protection, or the Act’s labeling requirement. The district court permanently enjoined enforcement of the Act. The State timely appealed. II. We review a grant of summary judgment de novo and must “determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law.” Bailen v. City of Redmond, 466 F.3d 736, 741 (9th Cir.2006) (citation and internal quotation marks omitted). We draw all reasonable inferences supported by the evidence in the nonmoving party’s favor. Id. We “may affirm summary judgment on any ground supported by the record.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n. 3 (9th Cir.2008). III. We first address Plaintiffs’ argument that the entire Act should be invalidated based on the State’s concession on appeal that the alternate definition of “violent video game” found in section 1746(d)(1)(B) is unconstitutionally broad. The State counters that the Act is" }, { "docid": "4949132", "title": "", "text": "TACHA, Circuit Judge. Plaintiff, appearing pro se, appeals the district court’s decision granting defendants summary judgment on his claims asserted under 42 U.S.C. § 1983, the Rehabilitation Act, see 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213(ADA). This court reviews a summary judgment decision de novo, viewing the record in the light most favorable to the nonmoving party. Carl v. City of Overland Park, 65 F.3d 866, 868 (10th Cir.1995). Summary judgment is appropriate only if there are no genuinely disputed material issues of fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). We liberally construe plaintiff’s pro se pleadings. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). This liberal construction, however, will not relieve plaintiff of his burden of presenting sufficient facts to state a legally cognizable claim. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Upon consideration of the record and the parties’ arguments on appeal, we affirm. I. SECTION 1983 CLAIMS Under § 1983, plaintiff asserted claims alleging that defendants were deliberately indifferent to his serious medical needs, contrary to the Eighth Amendment, and that defendants denied him necessary medical treatment, in violation of the Fourteenth Amendment. These claims stem from the refusal of Colorado Department of Corrections’ officials to provide plaintiff with surgery for a leg injury suffered in a car accident occurring prior to his incarceration, and for the denial of, or the delay in providing, diagnostic evaluation and treatment for this injury. The district court did not err in granting defendants summary judgment, based upon Eleventh Amendment sovereign immunity grounds, on the § 1983 claims plaintiff asserted against defendants, hr their official capacity, for money damages and a declaratory judgment. E.g., Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir.1995). And, although sovereign immunity will not bar plaintiffs 1983 claims for prospective injunc-tive relief, id., any such claims must now be deemed moot, in light of plaintiffs subsequent release on parole, see appellant’s opening br. at 44. Cf. LaFaut v. Smith, 834" } ]

[ { "docid": "9614815", "title": "", "text": "rejects evidence as being too confusing, a state court may merely be making a statement about its own competence and that of its juries to deal with this kind of evidence. But a federal court may assess its own capabilities differently, and logically should not be bound by the state court’s self-evaluation. Cf. Monarch Insurance Co. v. Spach, 281 F.2d 401, 407 (5th Cir.1960). Indeed, to the extent that the exclusionary rule is based on fear of confusion, it should not apply in federal court because Fed.R.Evid. 403 provides a federal standard for rejecting relevant evidence on the grounds of risk of prejudice, confusion, or waste of time, and, as shown above, the Federal Rules generally displace differing state rules even when the state rule is “outcome-determinative.” Hanna v. Plumer, 380 U.S. 460, 470-74, 85 S.Ct. 1136, 1143-45, 14 L.Ed.2d 8 (1965). Liepelt demonstrates that rule 403 would not categorically bar evidence of taxability. 444 U.S. at 494 & n. 7,100 S.Ct. at 758 & n. 7. Fortunately, we need not resolve this Erie conundrum in this case, because we hold that Illinois’ substantive measure of damages is identical to the FELA measure, leaving the district court free to admit all evidence relevant to that measure under Fed.R.Evid. 402. It is true that federal district court determinations of uncertain state law are ordinarily entitled to great weight. See Buehler Corp. v. Home Insurance Co., 495 F.2d 1211, 1214 (7th Cir.1974). They nevertheless remain reviewable as questions of law, see id., and in the circumstances of this case less than the usual deference may be due because the district court confessed its own uncertainty when it certified this interlocutory appeal under 28 U.S.C. § 1292(b) (1976). See In re Air Crash Disaster, 526 F.Supp. 226, 233-34 (N.D.Ill.1981). The Illinois Supreme Court has never decided whether evidence of the hypothetical tax liability of lost earnings is admissible in wrongful death cases. In Hall v. Chicago & North Western Railway, 5 Ill.2d 135, 149-50, 125 N.E.2d 77, 85 (1955), a personal injury case under FELA, it noted that the trial court’s exclusion of" } ]

[ { "docid": "14216925", "title": "", "text": "and the plaintiff’s counsel readily conceded at argument that people don’t think in these terms. At all events, the presence of a seatbelt system is at least relevant to the manufacturer’s effort to show that he used due care (or, in the language of strict liability, did not design the car defectively) with regard to the danger of an occupant’s being ejected in the event of an accident; and this is regardless of the doctrine of avoidable consequences. It is true that many people don’t use seatbelts, no matter how easy the manufacturers make their use. That is, indeed, the basic rationale of the North Carolina rule. The seemingly irrational distaste of automobile occupants for “buckling up” is one of the major forces behind the call for “passive restraints,” such as the airbag. We may assume that the duty of care is shaped by customers’ known propensities, whatever one might think of them from an ethical or prudential standpoint; that in some settings even “idiot proof” could be a doctrine of tort law, cf. Estrada v. Schmutz Mfg. Co., 734 F.2d 1218, 1220 (7th Cir.1984), by extrapolation from the rule that requires a potential injurer to take special precautions when children are known to be in the vicinity. Prosser and Keeton on the Law of Torts § 33, at pp. 199-200 (W. Page Keeton et al. eds. 5th ed. 1984). But this is just to say that Ford’s evidence that it had provided a seatbelt system as its main defense against the type of injury that occurred in this case was not conclusive on the issue of due care. The question is whether it was barred by the North Carolina rule. It was not. Either the rule is a substantive rule, and inapplicable because limited to the (partial) defense of avoidáble consequences, or an evidentia-ry rule and therefore inapplicable to proceedings in federal courts. Either way, the seatbelt evidence was admissible. The plaintiff complains separately that Ford harped on the seatbelt issue unmercifully, for example by asking the plaintiff whether she had taken a driver’s education course in which the" }, { "docid": "14216914", "title": "", "text": "may be informed by familiarity with local conditions, which is another reason to apply those principles rather than the tort law of the plaintiffs or the defendant’s domicile. William F. Baxter, “Choice of Law and the Federal System,” 16 Stan. L.Rev. 1 (1963). A further reason to doubt that Barron was placed at a disadvantage by the application of North Carolina law to her ease is that it is North Carolina law that arms her with the ground of appeal she presses most strongly — that the judge should not have let Ford introduce any evidence about seatbelt use because North Carolina has a strong common law rule, now codified by statute, that evidence that a plaintiff didn’t fasten his seatbelt is inadmissible in any civil action. Hagwood v. Odom, 88 N.C.App. 513, 516-17, 364 S.E.2d 190, 191-92 (1988). This may be, as we shall see, an overbroad statement of the common law rule; and yet the statute (which is not applicable to this case, however, because the case arose before its effective date) goes even further than the rule as we have stated it. For it provides that “evidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section.” N.C.Gen.Stat. § 20-135.2A(d) (emphasis added). The section in question is a mandatory seatbelt law, and evidence of nonuse can of course be introduced in a proceeding to impose a penalty for violation of the law. But if the statute is read literally, that is the only type of proceeding in which such evidence can be introduced. So if an irate passenger ripped off his seat belt, tore it from its moorings, and used it to strangle the driver, in the ensuing murder trial the prosecution would be forbidden to identify the murder weapon because to do so would be to show that the defendant had not been wearing his seatbelt. The literal reading of the statute — more to the point, of the common law rule that preceded it," }, { "docid": "16029045", "title": "", "text": "Before we reach that question, however, a brief explanation of why federal law applies is necessary. Federal courts exercising diversity jurisdiction apply state law to substantive issues and federal law to procedural issues. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The question before us is whether the admission of expert testimony should be governed by state or federal law; in other words, is it a procedural issue or a substantive issue? In the past we have not specifically answered this question. See Kirschner, 671 F.2d at 1040. We do so today. We have held that the Federal Rules of Evidence generally apply in federal diversity actions. See Pincus v. Pabst Brewing Co., 893 F.2d 1544, 1553 (7th Cir.1990); Rosenburg v. Lincoln American Life Ins. Co., 883 F.2d 1328, 1333 (7th Cir.1989); Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989). See also Pieters v. B-Right Trucking, Inc., 669 F.Supp. 1463 (N.D.Ind.1987). On some occasions, however, we have addressed the applicability of specific Federal Rules and reached various results. Compare Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 471-72 (7th Cir.1984) (Federal Rule 407, not state rule, applies in diversity action), with Monetti, S.P.A. v. Anchor Hocking Corp., 931 F.2d 1178, 1182 (7th Cir.1991) (whether oral evidence is admissible to show that an ambiguous document satisfies the statute of frauds is governed by state law); Lovejoy, 873 F.2d at 1005 (state’s dead man statute governs admissibility of certain evidence where state law supplies rule of decision). In addition to establishing the general rule that the Federal Rules apply to determine the admissibility of evidence, these cases show that there are exceptions to the general rule: express exceptions contained in the Federal Rules and “substantive rules masquerading as evidence rules.” Id. In Lovejoy, we found an exception based on language contained in the Federal Rules themselves. Id. Rule 601, governing the competency of witnesses, “sweeps away the traditional objections to competency of witnesses, but with the following exception:”" }, { "docid": "10665354", "title": "", "text": "here, the failure to use seat belts. 17A James Wm. Moore et al., Moore’s Federal Practice ¶ 124.09 (3d ed.2006). Yet, as previously explained, this Eñe approach turns Stewart on its head. Stewart requires the court to look first at the federal evidentiary rule. If that rule is arguably procedural, it governs even when a state substantive law is on point. Simply put, because Eñe is inapplicable, we must first look to the Federal Rules of Evidence. c. Tenth Circuit Approach Our precedent suggests that where a conflict exists between the Federal Rules of Evidence and state law, we apply the Federal Rules unless the state law reflects substantive concerns or policies. The admissibility of evidence in diversity cases in federal court is generally governed by federal law. Nevertheless, it is well recognized that Congress did not intend the procedural rules to preempt the so-called substantive state rules of evidence, such as the parol evidence rule, the collateral source rule, or the statute of frauds; although the application of these rules will affect the admissibility of some evidence, they in reality serve substantive state policies regulating private transactions. Macsenti v. Becker, 237 F.3d 1223, 1241 (10th Cir.2001) (quotations omitted); see Romine v. Parman, 831 F.2d 944, 944-45 (10th Cir.1987) (noting that while “admissibility of evidence in diversity cases in federal court is generally governed by federal law,” state law must be applied when “an evidentiary question is so dependent on a state substantive policy”). In our most noteworthy and extensive discussion of this issue, Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 930-33 (10th Cir.1984), we addressed the applicability of the Federal Rule of Evidence governing subsequent remedial measures. We held that state law rather than Rule 407 prevails, thus rejecting the notion that the “admissibility of evidence in diversity actions is governed exclusively by federal law — that is, the Federal Rules of Evidence.” Id. at 931. We employed instead an Erie analysis and categorized the state law as one of substance, not procedure. In doing so, we stated such distinction was necessary to effect the twin goals" }, { "docid": "14216921", "title": "", "text": "(7th Cir.1982); Mays v. Dealers Transit, Inc., 441 F.2d 1344, 1352 (7th Cir.1971). North Carolina courts accept the doctrine of avoidable consequences, but hold that it does not apply to the use of seatbelts. Miller v. Miller, supra, 273 N.C. at 239-40, 160 S.E.2d at 74. The nonuse of seatbelts is so widespread that the North Carolina courts, bearing in mind that the law rarely requires a person to exercise more than average care, refuse to pronounce that nonuse unreasonable. Id., 273 N.C. at 232-34, 160 S.E.2d at 69-70. Therefore, as a matter of state substantive law, evidence that the plaintiff had failed to fasten his seatbelt would be irrelevant to show that his damages should be cut down as a penalty for unreasonable behavior, and irrelevant evidence is not admissible under the federal rules of evidence. See Fed.R.Evid. 402. Miller dates from the 1960s, and seatbelt usage is more common today, in North Carolina as elsewhere, we presume; but the North Carolina courts have not seen fit to reexamine their rule. Hagwood v. Odom, supra, 88 N.C.App. at 516-17, 364 S.E.2d at 191-92, the clearest articulation of North Carolina’s common law rule against seatbelt evidence, holds not that such evidence is inadmissible on all issues but only that it is inadmissible to establish the plaintiffs failure to exercise due care to minimize the consequences of an accident should one occur. Hagwood shows that Judge Adams was right, and his brethren wrong, in Seese v. Volkswagenwerk A.G., 648 F.2d 833, 841-42 (3d Cir.1981); id. at 852-54 (dissenting opinion). That case held that in North Carolina evidence of the nonuse of a seatbelt is inadmissible not only to show that the plaintiff had been careless in failing to fasten his seatbelt but also to show that the provision of the seatbelt option was a reasonable component of an overall plan for protecting occupants from the consequences of a crash. The court in Seese did not have the benefit of Hagwood, which was decided years later, and which shows that the majority in Seese guessed wrong about the North Carolina rule. We" }, { "docid": "10665364", "title": "", "text": "affairs beyond the bounds of congressional legislative powers.” Hanna, 380 U.S. at 474-75, 85 S.Ct. 1136 (Harlan, J. concurring). But we also recognize that Congress may “prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules.” Id. at 473, 85 S.Ct. 1136. This is not to say, however, that Congress has done so in a manner that disrespects “one of the modern cornerstones of our federalism.” Id. at 474, 85 S.Ct. 1136 (Harlan, J. concurring). Although Erie does not apply, its reasoning remains instructive. In formulating Rule 401, Congress maintained the delicate balance between the state and federal systems. We keep with that goal: a fact may be “of consequence” in a diversity action only if substantive state policy so allows. With this analysis behind us, we now address the district court’s exclusion of evidence regarding Sims’s failure to use his seat belt and testimony from state officials concerning Sims’s manner of death. In doing so, the first question we resolve is whether, under Rule 401, the evidence offered is “of consequence” to the action. This inquiry necessarily requires us to consider if the state law excluding this evidence reflects substantive policy considerations. 2. Admissibility of Seat Belt Evidence Great American’s principal evidentiary argument on appeal is that it should have been permitted to offer evidence showing Sims did not fasten his seat belt on the night he died. The district court relied on Oklahoma’s Mandatory Seat Belt Act to exclude this evidence. See Okla. Stat. tit. 47, § 12-420 (barring evidence of the use or non-use of a seatbelt in any civil suit). The court reasoned that in a diversity action, although the admissibility of evidence is generally governed by the Federal Rules of Evidence, when the “evidentiary question is so dependent on state substantive policy, state law must be applied.” R. at 467 (quoting Romine v. Parman, 831 F.2d 944 (10th Cir.1987)). Great American contends this logic is flawed for two independent reasons: (1) because the Federal Rules of Evidence govern, this evidence is admissible, and (2) even if" }, { "docid": "14216915", "title": "", "text": "even further than the rule as we have stated it. For it provides that “evidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section.” N.C.Gen.Stat. § 20-135.2A(d) (emphasis added). The section in question is a mandatory seatbelt law, and evidence of nonuse can of course be introduced in a proceeding to impose a penalty for violation of the law. But if the statute is read literally, that is the only type of proceeding in which such evidence can be introduced. So if an irate passenger ripped off his seat belt, tore it from its moorings, and used it to strangle the driver, in the ensuing murder trial the prosecution would be forbidden to identify the murder weapon because to do so would be to show that the defendant had not been wearing his seatbelt. The literal reading of the statute — more to the point, of the common law rule that preceded it, at least as the plaintiff understands that rule — would thus rule out Ford’s presenting evidence, as it did, that Tina Barron was not wearing her seatbelt when the accident occurred. It is true that this was not the focus, at least not the nominal focus, of the testimony about seat-belts. Ford’s point was merely that the provision of seatbelts was a part of the automobile’s overall restraint system, so that the reasonableness of making the sunroof of tempered rather than of laminated glass was a function in part of the other steps Ford had taken to prevent occupants from being flung out. But it could not make the argument without indicating that Barron had not been wearing her seatbelt, since if she had been and it had not kept her from flying through the sunroof Ford’s argument about its total restraint system would fall flat on its face. The literal interpretation of North Carolina’s rule, though, is almost certainly incorrect. In State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991), a" }, { "docid": "17387919", "title": "", "text": "Chicago, 701 F.2d 1189, 1193 (7th Cir.1983); Flaminio v. Honda Motor Co., 733 F.2d 463, 470-71 (7th Cir.1984); Romine v. Parman, 831 F.2d 944 (10th Cir.1987), there are a number of express exceptions, see Fed.R.Evid. 302 (presumptions), 501 (privileges), 601 (competency of witnesses), as well as substantive rules masquerading as evidence rules, such as the parol evidence rule itself. The pertinent exception here is the one in Rule 601. The rule sweeps away the traditional objections to competency of witnesses, but with the following exception: in civil cases, “with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.” The legislative history of Rule 601 reveals that the purpose of this exception was, precisely, to preserve state dead man’s laws in cases such as this where state law supplies the rule of decision. See H.R.Rep. No. 650, 93d Cong., 1st Sess. 9 (1973). So far as relevant here, the Illinois dead man’s statute forbids a party to a suit by or against a firm to testify about any conversation with a dead agent of the firm, unless a living agent of the firm was also present at the conversation (to testify as the dead man himself might have testified to what was said). (Ill.Rev.Stat. ch. 110, it 8-301. The statute refers only to “partners” and “joint contractors,” and not to agents save as they may have contracted with the party; but its application to corporate agents without this qualification was assumed in Golen v. Chamberlain Mfg. Corp., 139 Ill.App.3d 53, 59-60, 93 Ill.Dec. 677, 682, 487 N.E.2d 121, 126 (1985) (but see Sohigro Service Co. v. Industrial Comm’n, 172 Ill.App.3d 47, 57, 122 Ill.Dec. 424, 434, 526 N.E.2d 683, 689 (1988)), and is not contested by O’Berto. Anyway, this may be a case of an agent who contracted with a party — for Pat Hennessy did execute a contract on Lovejoy’s behalf with O’Berto, even though this suit is not for a breach of contract based on Hennessy’s" }, { "docid": "14216919", "title": "", "text": "Courts,” 55 Texas L.Rev. 371, 404, 406 (1977). The North Carolina rule could be either. It is a rule of evidence if it is motivated by concern that jurors attach too much weight to a plaintiff’s failure to wear his seatbelt. It is a substantive rule if it is designed not to penalize persons who fail to fasten their seatbelts. Many rules mix procedural or evidentiary with substantive policy concerns, examples being the parol evidence rule, the “mend the hold” doctrine that we discussed in Harbor Ins. Co. v. Continental Bank Corp., N.A., 922 F.2d 357, 364 (7th Cir.1990), the rule against admission of evidence of subsequent repairs in a tort case, Flaminio v. Honda Motor Co., supra, 733 F.2d at 471, and the doctrine of election of remedies, Olympia Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d 1363, 1371 (7th Cir.1990). The more broadly the North Carolina rule is interpreted, the stronger the inference that its predominant character is that of a rule of evidence. In choosing between a broad and a narrow interpretation we must consider why a defendant would want to introduce evidence of a plaintiff’s failure to wear his seatbelt. The purpose would not be to show that the plaintiff was contributorily negligent. Wearing a seatbelt does not make it less likely that you will have an accident — it could make it more likely, at least if you’re the driver, by making you feel safer. The purpose of the evidence would be to show that the plaintiff failed to take reasonable measures to reduce the severity of the accident if one occurred. The duty to take such measures (which is closely related to the contract duty of mitigation of damages) goes by the name “avoidable consequences.” Brooks v. Allison Division, 874 F.2d 489, 490 (7th Cir.1989); Tacket v. General Motors Corp., 836 F.2d 1042, 1047 (7th Cir.1987). It is to that doctrine that evidence of not fastening one’s seatbelt is primarily relevant. Miller v. Miller, 273 N.C. 228, 239-40, 160 S.E.2d 65, 74 (1968); Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 958" }, { "docid": "14216926", "title": "", "text": "v. Schmutz Mfg. Co., 734 F.2d 1218, 1220 (7th Cir.1984), by extrapolation from the rule that requires a potential injurer to take special precautions when children are known to be in the vicinity. Prosser and Keeton on the Law of Torts § 33, at pp. 199-200 (W. Page Keeton et al. eds. 5th ed. 1984). But this is just to say that Ford’s evidence that it had provided a seatbelt system as its main defense against the type of injury that occurred in this case was not conclusive on the issue of due care. The question is whether it was barred by the North Carolina rule. It was not. Either the rule is a substantive rule, and inapplicable because limited to the (partial) defense of avoidáble consequences, or an evidentia-ry rule and therefore inapplicable to proceedings in federal courts. Either way, the seatbelt evidence was admissible. The plaintiff complains separately that Ford harped on the seatbelt issue unmercifully, for example by asking the plaintiff whether she had taken a driver’s education course in which the use of seatbelts had been explained (her answer was yes). But the plaintiff’s lawyer set her up for this damaging line of inquiry. An auxiliary theory of her case was that Ford should have warned occupants of the car that the sunroof wouldn’t hold them in and that they should therefore fasten their seat-belts. Stegall v. Catawba Oil Co., 260 N.C. 459, 464, 133 S.E.2d 138, 142 (1963); Ziglar v. E.I. du Pont de Nemours & Co., 53 N.C.App. 147, 151, 280 S.E.2d 510, 513 (1981). It was relevant to this issue for Ford to show that Barron didn’t need any warnings about the dangers of not fastening her seatbelt because she had learned all about that in the driver’s ed course. Another issue is whether the judge should have allowed the plaintiff’s lawyer to rehabilitate one of the plaintiff’s witnesses, a former employee of Ford who testified that for safety’s sake the sunroof should have been made of laminated glass. On cross-examination Ford brought out the fact that this employee had been fired, which—the" }, { "docid": "14216918", "title": "", "text": "case; and there is no counterpart rule in the federal law of evidence. Well, but is it a rule of evidence for purposes of the Erie doctrine, or is it a substantive rule and therefore binding in a diversity case (or any other case in which state law supplies the rule of decision)? The difference is this. A pure rule of evidence, like a pure rule of procedure, is concerned solely with accuracy and economy in litigation and should therefore be tailored to the capacities and circumstances of the particular judicial system, here the federal one; while a substantive rule is concerned with the channeling of behavior outside the courtroom, and where as in this case the behavior in question is regulated by state law rather than by federal law, state law should govern even if the case happens to be in federal court. Massachusetts Mutual Life Ins. Co. v. Brei, 311 F.2d 463, 465-66 (2d Cir.1962); Olin Guy Well-born III, “The Federal Rules of Evidence and the Application of State Law in the Federal Courts,” 55 Texas L.Rev. 371, 404, 406 (1977). The North Carolina rule could be either. It is a rule of evidence if it is motivated by concern that jurors attach too much weight to a plaintiff’s failure to wear his seatbelt. It is a substantive rule if it is designed not to penalize persons who fail to fasten their seatbelts. Many rules mix procedural or evidentiary with substantive policy concerns, examples being the parol evidence rule, the “mend the hold” doctrine that we discussed in Harbor Ins. Co. v. Continental Bank Corp., N.A., 922 F.2d 357, 364 (7th Cir.1990), the rule against admission of evidence of subsequent repairs in a tort case, Flaminio v. Honda Motor Co., supra, 733 F.2d at 471, and the doctrine of election of remedies, Olympia Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d 1363, 1371 (7th Cir.1990). The more broadly the North Carolina rule is interpreted, the stronger the inference that its predominant character is that of a rule of evidence. In choosing between a broad and a narrow" }, { "docid": "14216922", "title": "", "text": "supra, 88 N.C.App. at 516-17, 364 S.E.2d at 191-92, the clearest articulation of North Carolina’s common law rule against seatbelt evidence, holds not that such evidence is inadmissible on all issues but only that it is inadmissible to establish the plaintiffs failure to exercise due care to minimize the consequences of an accident should one occur. Hagwood shows that Judge Adams was right, and his brethren wrong, in Seese v. Volkswagenwerk A.G., 648 F.2d 833, 841-42 (3d Cir.1981); id. at 852-54 (dissenting opinion). That case held that in North Carolina evidence of the nonuse of a seatbelt is inadmissible not only to show that the plaintiff had been careless in failing to fasten his seatbelt but also to show that the provision of the seatbelt option was a reasonable component of an overall plan for protecting occupants from the consequences of a crash. The court in Seese did not have the benefit of Hagwood, which was decided years later, and which shows that the majority in Seese guessed wrong about the North Carolina rule. We add that the statute itself, in speaking of “evidence of failure to wear a seat belt,” ,could well be thought not to be referring to evidence that the vehicle was equipped with seatbelts. If our understanding of the scope of the rule is correct, then the rule is substantive, all right; it is founded on the desire of the North Carolina courts not to penalize the failure to fasten one’s seatbelt, because nonuse is so rampant in the state that the average person could not be thought careless for failing to fasten his seatbelt. Miller v. Miller, supra, 273 N.C. at 232-34, 160 S.E.2d at 69-70. But, so understood, the rule, while applicable in diversity cases, does not cover Ford’s use of seatbelt evidence in this case. The purpose was not to show that Tina Barron failed to mitigate the consequences of the accident but to show that Ford had been reasonable in deciding not to make the sunroof out of laminated glass — that it had provided as it were a backup system in" }, { "docid": "17387918", "title": "", "text": "up the damages caused by the fraud. That is, he made no effort to establish the position he would have occupied had there been no fraud and compare that to the position he did occupy. Maybe if Hennessy hadn’t promised him the special benefits from the Fenner deal, O’Berto would have severed his connections with Lovejoy then and there — and who knows whether he would have been better off or worse off doing so. But while complaining about the damages on other grounds, Lovejoy does not complain about a mismatch between the theory of liability and the theory underlying the damages award. Any such complaint is therefore forfeited, and we need not consider its potential merit. Lovejoy does, however, argue that O’Berto’s testimony about his conversation with Hennessy — the key evidence of the alleged fraud — should have been excluded under the Illinois “dead man” statute. Although as a general rule federal rather than state law governs the admissibility of evidence in federal diversity cases, see, e.g., In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1193 (7th Cir.1983); Flaminio v. Honda Motor Co., 733 F.2d 463, 470-71 (7th Cir.1984); Romine v. Parman, 831 F.2d 944 (10th Cir.1987), there are a number of express exceptions, see Fed.R.Evid. 302 (presumptions), 501 (privileges), 601 (competency of witnesses), as well as substantive rules masquerading as evidence rules, such as the parol evidence rule itself. The pertinent exception here is the one in Rule 601. The rule sweeps away the traditional objections to competency of witnesses, but with the following exception: in civil cases, “with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.” The legislative history of Rule 601 reveals that the purpose of this exception was, precisely, to preserve state dead man’s laws in cases such as this where state law supplies the rule of decision. See H.R.Rep. No. 650, 93d Cong., 1st Sess. 9 (1973). So far as relevant here, the Illinois dead man’s statute" }, { "docid": "14216917", "title": "", "text": "prosecution of a woman for murdering her disabled daughter by abandoning her car with the daughter in it on a railroad crossing, the Supreme Court of North Carolina remarked, without criticism, the introduction of evidence that the daughter knew how to release her seatbelt; it never occurred to anyone that such evidence might be inadmissible. If it were inadmissible under North Carolina law, moreover, this might not help the plaintiff in this case. Even in diversity cases the rules of evidence applied in federal courts are the federal rules of evidence rather than state rules, Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989); In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1193 (7th Cir.1983); Romine v. Parman, 831 F.2d 944 (10th Cir.1987), save with respect to matters of presumptions, privilege, and competency of witnesses, Fed.R.Evid. 302, 501, 601, none of which is involved here. If North Carolina’s rule against the admission of testimony about a failure to wear one’s seatbelt is a rule of evidence, it is inapplicable to this case; and there is no counterpart rule in the federal law of evidence. Well, but is it a rule of evidence for purposes of the Erie doctrine, or is it a substantive rule and therefore binding in a diversity case (or any other case in which state law supplies the rule of decision)? The difference is this. A pure rule of evidence, like a pure rule of procedure, is concerned solely with accuracy and economy in litigation and should therefore be tailored to the capacities and circumstances of the particular judicial system, here the federal one; while a substantive rule is concerned with the channeling of behavior outside the courtroom, and where as in this case the behavior in question is regulated by state law rather than by federal law, state law should govern even if the case happens to be in federal court. Massachusetts Mutual Life Ins. Co. v. Brei, 311 F.2d 463, 465-66 (2d Cir.1962); Olin Guy Well-born III, “The Federal Rules of Evidence and the Application of State Law in the Federal" }, { "docid": "14216913", "title": "", "text": "it is true that Ford of Canada (or for that matter its American parent) is not a citizen of North Carolina. But in Florida as in most states (for remember that it is Florida conflict of laws principles that govern this case), despite the inroads that “interest analysis” and “most significant relationship” inquiry have made on the simplicities of the old common law conflicts principles, the presumption remains that the law of the state in which the accident occurred governs tort claims arising from the accident, Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980); State Farm Mutual Automobile Ins. Co. v. Olsen, 406 So.2d 1109, 1111 (Fla.1981), although the presumption is rebuttable. Wal-Mart Stores, Inc. v. Budget Rent-A-Car Systems, 567 So.2d 918, 920 (Fla.App.1990). That state is concerned in an accident even if neither party is a resident— clearly so in a case such as this, where one of the parties to the accident, albeit not to the lawsuit, was a resident of the state (Tina Barron’s sister). And its tort principles may be informed by familiarity with local conditions, which is another reason to apply those principles rather than the tort law of the plaintiffs or the defendant’s domicile. William F. Baxter, “Choice of Law and the Federal System,” 16 Stan. L.Rev. 1 (1963). A further reason to doubt that Barron was placed at a disadvantage by the application of North Carolina law to her ease is that it is North Carolina law that arms her with the ground of appeal she presses most strongly — that the judge should not have let Ford introduce any evidence about seatbelt use because North Carolina has a strong common law rule, now codified by statute, that evidence that a plaintiff didn’t fasten his seatbelt is inadmissible in any civil action. Hagwood v. Odom, 88 N.C.App. 513, 516-17, 364 S.E.2d 190, 191-92 (1988). This may be, as we shall see, an overbroad statement of the common law rule; and yet the statute (which is not applicable to this case, however, because the case arose before its effective date) goes" }, { "docid": "10665365", "title": "", "text": "the evidence offered is “of consequence” to the action. This inquiry necessarily requires us to consider if the state law excluding this evidence reflects substantive policy considerations. 2. Admissibility of Seat Belt Evidence Great American’s principal evidentiary argument on appeal is that it should have been permitted to offer evidence showing Sims did not fasten his seat belt on the night he died. The district court relied on Oklahoma’s Mandatory Seat Belt Act to exclude this evidence. See Okla. Stat. tit. 47, § 12-420 (barring evidence of the use or non-use of a seatbelt in any civil suit). The court reasoned that in a diversity action, although the admissibility of evidence is generally governed by the Federal Rules of Evidence, when the “evidentiary question is so dependent on state substantive policy, state law must be applied.” R. at 467 (quoting Romine v. Parman, 831 F.2d 944 (10th Cir.1987)). Great American contends this logic is flawed for two independent reasons: (1) because the Federal Rules of Evidence govern, this evidence is admissible, and (2) even if the Rules are not applicable, the statute does not apply where a defendant is not attempting to insinuate fault but, as here, is only attempting to prove a driver’s state of mind. Although we hold that the Rules exclusively govern in federal diversity cases, we still must determine, in accordance with our Rule 401 relevancy assessment, whether § 12-420 is a procedural rule or a substantive one. Because this determination necessarily involves interpretation of Oklahoma law, we apply the most recent pronouncement of the Oklahoma Supreme Court. If, however, the Oklahoma Supreme Court has not yet spoken on the issue, we predict how that court would address the issue. Blackhawk-Central City Sanitation Dist. v. Am. Guar. & Liab. Ins. Co., 214 F.3d 1183, 1188 (10th Cir.2000). We review de novo the district court’s interpretation of Oklahoma law. Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 910 (10th Cir.2005). a. Mandatory Seat Belt Act Oklahoma enacted its Mandatory Seat Belt Act to encourage seat belt use on the roads of Oklahoma. See Bishop v. Takata" }, { "docid": "14216920", "title": "", "text": "interpretation we must consider why a defendant would want to introduce evidence of a plaintiff’s failure to wear his seatbelt. The purpose would not be to show that the plaintiff was contributorily negligent. Wearing a seatbelt does not make it less likely that you will have an accident — it could make it more likely, at least if you’re the driver, by making you feel safer. The purpose of the evidence would be to show that the plaintiff failed to take reasonable measures to reduce the severity of the accident if one occurred. The duty to take such measures (which is closely related to the contract duty of mitigation of damages) goes by the name “avoidable consequences.” Brooks v. Allison Division, 874 F.2d 489, 490 (7th Cir.1989); Tacket v. General Motors Corp., 836 F.2d 1042, 1047 (7th Cir.1987). It is to that doctrine that evidence of not fastening one’s seatbelt is primarily relevant. Miller v. Miller, 273 N.C. 228, 239-40, 160 S.E.2d 65, 74 (1968); Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 958 (7th Cir.1982); Mays v. Dealers Transit, Inc., 441 F.2d 1344, 1352 (7th Cir.1971). North Carolina courts accept the doctrine of avoidable consequences, but hold that it does not apply to the use of seatbelts. Miller v. Miller, supra, 273 N.C. at 239-40, 160 S.E.2d at 74. The nonuse of seatbelts is so widespread that the North Carolina courts, bearing in mind that the law rarely requires a person to exercise more than average care, refuse to pronounce that nonuse unreasonable. Id., 273 N.C. at 232-34, 160 S.E.2d at 69-70. Therefore, as a matter of state substantive law, evidence that the plaintiff had failed to fasten his seatbelt would be irrelevant to show that his damages should be cut down as a penalty for unreasonable behavior, and irrelevant evidence is not admissible under the federal rules of evidence. See Fed.R.Evid. 402. Miller dates from the 1960s, and seatbelt usage is more common today, in North Carolina as elsewhere, we presume; but the North Carolina courts have not seen fit to reexamine their rule. Hagwood v. Odom," }, { "docid": "10665355", "title": "", "text": "of some evidence, they in reality serve substantive state policies regulating private transactions. Macsenti v. Becker, 237 F.3d 1223, 1241 (10th Cir.2001) (quotations omitted); see Romine v. Parman, 831 F.2d 944, 944-45 (10th Cir.1987) (noting that while “admissibility of evidence in diversity cases in federal court is generally governed by federal law,” state law must be applied when “an evidentiary question is so dependent on a state substantive policy”). In our most noteworthy and extensive discussion of this issue, Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 930-33 (10th Cir.1984), we addressed the applicability of the Federal Rule of Evidence governing subsequent remedial measures. We held that state law rather than Rule 407 prevails, thus rejecting the notion that the “admissibility of evidence in diversity actions is governed exclusively by federal law — that is, the Federal Rules of Evidence.” Id. at 931. We employed instead an Erie analysis and categorized the state law as one of substance, not procedure. In doing so, we stated such distinction was necessary to effect the twin goals of Erie — (1) uniformity, and (2) prevention of forum-shopping. Id. at 932. We concluded, If the law of the state supplies the rule of decision, there is no justification for reliance on Rule 407. We recognize that, by its terms, Rule 407, when read in conjunction with Rules 401 and 402, does appear to apply in these cases. However, such a result is an unwarranted incursion into the Erie doctrine. Id. We are careful to point out, however, that the court’s discussion regarding the application of the Federal Rules of Evidence was dicta. As the court observed: “Notwithstanding our view that the trial court erred in ruling that ... Rule 407 applies in diversity actions without regard to state law, we hold that no harm resulted therefrom because the trial court’s actions were proper and correct on other grounds.” Id. at 933. Indeed, one judge in a concurring opinion refused to join the court’s Erie discussion, stating, I concur in [the] result and in the opinion of the court except to the extent that" }, { "docid": "14216916", "title": "", "text": "at least as the plaintiff understands that rule — would thus rule out Ford’s presenting evidence, as it did, that Tina Barron was not wearing her seatbelt when the accident occurred. It is true that this was not the focus, at least not the nominal focus, of the testimony about seat-belts. Ford’s point was merely that the provision of seatbelts was a part of the automobile’s overall restraint system, so that the reasonableness of making the sunroof of tempered rather than of laminated glass was a function in part of the other steps Ford had taken to prevent occupants from being flung out. But it could not make the argument without indicating that Barron had not been wearing her seatbelt, since if she had been and it had not kept her from flying through the sunroof Ford’s argument about its total restraint system would fall flat on its face. The literal interpretation of North Carolina’s rule, though, is almost certainly incorrect. In State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991), a prosecution of a woman for murdering her disabled daughter by abandoning her car with the daughter in it on a railroad crossing, the Supreme Court of North Carolina remarked, without criticism, the introduction of evidence that the daughter knew how to release her seatbelt; it never occurred to anyone that such evidence might be inadmissible. If it were inadmissible under North Carolina law, moreover, this might not help the plaintiff in this case. Even in diversity cases the rules of evidence applied in federal courts are the federal rules of evidence rather than state rules, Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989); In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1193 (7th Cir.1983); Romine v. Parman, 831 F.2d 944 (10th Cir.1987), save with respect to matters of presumptions, privilege, and competency of witnesses, Fed.R.Evid. 302, 501, 601, none of which is involved here. If North Carolina’s rule against the admission of testimony about a failure to wear one’s seatbelt is a rule of evidence, it is inapplicable to this" }, { "docid": "16029044", "title": "", "text": "any problems with his low back as far as we can tell before the accident of April 5th, 1990, and has had problems since that date, do you have an opinion based upon a reasonable degree of medical certainty whether the accident aggravated or worsened that condition making it symptomatic? A Well, here’s where it gets to be very difficult to split the two apart. I mean how do you determine what symptoms in his lower legs are caused by his cervical spine compression [the accident injury] and his lumbar problem [the pre-existing condition]. The defendants argue that the foregoing testimony was improperly admitted because, under Indiana law, expert physician testimony must be based on a reasonable medical probability and these doctors testified to only possibilities. The defendants, however, are relying on the wrong body of law. Indiana law does not govern the admissibility of expert testimony in a federal forum; rather, the Federal Rules of Evidence govern. Consequently, the proper question is whether the physicians’ testimonies were properly admitted under Federal Rules of Evidence. Before we reach that question, however, a brief explanation of why federal law applies is necessary. Federal courts exercising diversity jurisdiction apply state law to substantive issues and federal law to procedural issues. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The question before us is whether the admission of expert testimony should be governed by state or federal law; in other words, is it a procedural issue or a substantive issue? In the past we have not specifically answered this question. See Kirschner, 671 F.2d at 1040. We do so today. We have held that the Federal Rules of Evidence generally apply in federal diversity actions. See Pincus v. Pabst Brewing Co., 893 F.2d 1544, 1553 (7th Cir.1990); Rosenburg v. Lincoln American Life Ins. Co., 883 F.2d 1328, 1333 (7th Cir.1989); Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989). See also Pieters v. B-Right Trucking, Inc., 669 F.Supp. 1463 (N.D.Ind.1987). On" } ]

[ { "docid": "22622263", "title": "", "text": "F. 2d, at 602 (concluding that regulatory measures “actually aggravated] the decline”). As a result, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183, with the objects of preventing the collapse of the industry, attacking the root causes of the crisis, and restoring public confidence. FIRREA made enormous changes in the structure of federal thrift regulation by (1) abolishing FSLIC and transferring its functions to other agencies; (2) creating a new thrift deposit insurance fund under the Federal Deposit Insurance Corporation; (3) replacing the Bank Board with the Office of Thrift Supervision (OTS), a Treasury Department office with responsibility for the regulation of all federally insured savings associations; and (4) establishing the Resolution Trust Corporation to liquidate or otherwise dispose of certain closed thrifts and their assets. See note following 12 U. S. C. § 1437, §§ 1441a, 1821. More importantly for the present case, FIRREA also obligated OTS to “prescribe and maintain uniformly applicable capital standards for savings associations” in accord with strict statutory re quirements. § 1464(t)(l)(A). In particular, the statute required thrifts to “maintain core capital in an amount not less than 3 percent of the savings association’s total assets,” § 1464(t)(2)(A), and defined “core capital” to exclude “unidentifiable intangible assets,” § 1464(t)(9)(A), such as goodwill. Although the reform provided a “transition rule” permitting thrifts to count “qualifying supervisory goodwill” toward half the core capital requirement, this allowance was phased out by 1995. § 1464(t)(3)(A). According to the House Report, these tougher capital requirements reflected a congressional judgment that “[t]o a considerable extent, the size of the thrift crisis resulted from the utilization of capital gimmicks that masked the inadequate capitalization of thrifts.” House Report, at 310. The impact of FIRREA’s new capital requirements upon institutions that had acquired failed thrifts in exchange for supervisory goodwill was swift and severe. OTS promptly issued regulations implementing the new capital standards along with a bulletin noting that FIRREA “eliminates [capital and accounting] forbearances” previously granted to certain thrifts. Office of Thrift Supervision, Capital Adequacy: Guidance on the Status of" } ]

[ { "docid": "21712639", "title": "", "text": "MEMORANDUM OPINION BRADEN, Judge. This case is another progeny of Winstar Corp. v. United States, 25 Cl.Ct. 541 (1992) (“Winstar /”), ajfd, 64 F.3d 1531 (Fed.Cir. 1995) (en banc) (“Winstar II”), ajpd, 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (“Winstar IIP’). For the reasons discussed herein, the court grants the October 10, 2000 motion for partial summary judgment filed by American Capital Corporation and Tran-scapital Financial Corporation (collectively “plaintiffs”), in substantial part, because an August 29, 1986 Assistance Agreement between plaintiffs and the Federal Savings and Loan Insurance Corporation (“FSLIC”), incorporating by reference an August 21, 1986 Federal Home Loan Bank Board (“FHLBB”) Resolution No. 86-864 (“Assistance Agreement”), created a valid and enforceable contract. That contract was breached by the Office of Thrift Supervision (“OTS”), the successor agency to the FHLBB, at least as early as December 7, 1989 when OTS issued final regulations implementing far more stringent regulatory capital requirements and standards than those set forth in the terms of FHLBB Resolution No. 86-864 and the Assistance Agreement executed in reliance thereof. RELEVANT FACTS AND PROCEDURAL BACKGROUND To date, the United States Court of Appeals for the Federal Circuit has issued twenty-six opinions implementing and interpreting a variety of legal issues in Winstar-related cases that chronicle in detail the financial crisis in the savings and loan (“thrift”) industry leading to the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”), Pub.L. No. 101-73,103 Stat. 183 (1989). See, e.g., Anderson v. United States, 344 F.3d 1343, 1345-47 (Fed.Cir.2003); Landmark Land Co., Inc. v. United States, 256 F.3d 1365, 1369-71 (Fed.Cir.2001); Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1376-78 (Fed.Cir.2001). Therefore, knowledge of the history of FIRREA and the teachings of Winstar are presumed, so the court will limit the narrative and discussion in this opinion to the facts and controlling law relevant to a resolution of plaintiffs’ pending summary judgment motion regarding liability. A. The Transohio Merger On August 29, 1985, FSLIC and FHLBB convened a conference of financial institutions and potential investors to market three financially troubled thrifts, including Citizens Federal" }, { "docid": "350719", "title": "", "text": "OPINION LYDON, Senior Judge. This is a Winstar-related case. The plaintiffs allege that they entered into a contract with the United States under which Franklin Financial Group, Inc., a thrift holding company, acquired a failing thrift in eastern Tennessee called Morristown Federal Savings & Loan Association. As part of the contract, plaintiffs assert, the Government promised that the new institution, renamed Franklin Federal Savings Bank, could treat the deficit net worth of Morristown Federal Savings & Loan Association as an intangible asset for purposes of calculating the new thrift’s regulatory capital and satisfying its minimum regulatory capital requirements. This intangible asset, called supervisory goodwill, was to be amortized on a straight-line basis over 25 years. In accordance with the Supreme Court’s holding in United States v. Winstar Corporation et al. (\"Winstar III”), 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), the plaintiffs contend that this “goodwill contract” was breached by the Government through the enactment of legislation, the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), P.L. No. 101-73, 103 Stat. 183, which essentially eliminated supervisory goodwill from thrift institutions’ regulatory capital. The plaintiffs have filed an omnibus motion for summary judgment on their breach of contract claim. They seek reliance and so-called “wounded bank” damages as a matter of law, while reserving the right to pursue additional damages theories at trial. The Government has filed a motion to dismiss this claim for lack of a binding contract or, in the alternative, a motion for summary judgment. The Government’s basic stance is that there was no contract between the plaintiffs and the United States promising that Franklin Federal Savings Bank could treat supervisory goodwill as an asset, amortizable over 25 years, for the purposes of satisfying regulatory capital requirements. As grounds for this position, the Government argues that the federal officials with whom the plaintiffs dealt in converting Morristown Federal Savings & Loan Association into Franklin Federal Savings Bank did not have authority to enter into the alleged “goodwill contract,” and that the instruments involved in that transaction indicate only a regulatory approval, not the formation" }, { "docid": "13850844", "title": "", "text": "OPINION AND ORDER HODGES, Judge. Plaintiff Old Stone Corporation became a bank holding company in June 1974 pursuant to the Bank Holding Company Act of 1956, 12 U.S.C. §§ 1841-1849. Old Stone Corporation was the sole shareholder of a commercial bank subsidiary, Old Stone Bank. The bank had been organized in Rhode Island as a mutual savings bank in 1819 and operated under that charter until 1974 when it became a commercial bank. The Federal Home Loan Bank Board approached Old Stone’s management in 1984 seeking a buyer for a failing thrift known as Rhode Island Federal Savings Bank. Savings and loan regulators typically guaranteed certain benefits to acquiring investors during this period as consideration for their assumption of institutions that had negative net worth. Such incentives included agreements to forbear enforcement of normal regulatory requirements, use of capital credits, and recognition of the negative net worth as “goodwill.” The goodwill could be used as regulatory capital to maintain required minimum capital ratios and to leverage loans as if it were tangible capital. The goodwill could be amortized over a period of thirty or forty years as an asset might be. The savings and loan crisis of the 1980’s prompted Congress to enact the Financial Institution Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, to gain control of problems that it perceived in the savings and loan industry. The new law eliminated or modified a number of investors’ contracts with the Government. This court found that Congress breached the investors’ contracts by enacting FIR-REA. Winstar Corp. v. United States, 21 Cl.Ct. 112 (1990). The Federal Circuit and the Supreme Court agreed. See Winstar Corp. v. United States, 64 F.3d 1531 (Fed.Cir.1995) (en banc), aff'd, 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). The Supreme Court remanded Winstar-related eases for consideration of damages. 518 U.S. at 910, 116 S.Ct. 2432. Old Stone Corporation, an investor affected by the breach, filed suit against the United States in 1992. The Federal Deposit Insurance Corporation joined the case as receiver in 1996. Proceedings were delayed by the effects of" }, { "docid": "21657961", "title": "", "text": "MAYER, Chief Judge. Bluebonnet Savings Bank, FSB, Stone Capital, Inc. (formerly known as CFSB Corporation), and James M. Fail (collectively “Bluebonnet”) appeal the judgments of the United States Court of Federal Claims (1) holding on summary judgment that the passage of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), Pub. L. 101-73, 103 Stat. 183 (1989), and its implementing regulations and related agency actions, breached a contract between Bluebonnet and the government, Bluebonnet Savings Bank v. United States, 43 Fed.Cl. 69, 72, 80 (1999) (“Bluebonnet I”), but (2) awarding no damages, Bluebonnet Savings Bank v. United States, 47 Fed.Cl. 156 (2000) (“Bluebonnet II”). We reverse and remand. Background The history and circumstances surrounding the thrift crisis of the early 1980’s and the enactment of FIRREA, have been extensively discussed in the original Winstar cases and will be revisited only as necessary to the present case. See United States v. Winstar Corp., 518 U.S. 839, 843-858, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (“Winstar III”). The savings and loan industry in the southwestern United States in the late 1980’s was in a state of crisis; hundreds of thrifts were either insolvent or on the verge of insolvency, and the Federal Savings and Loan Insurance Corporation (“FSLIC”) lacked sufficient funds to liquidate all the troubled thrifts. In response, the Federal Home Loan Bank Board (“FHLBB”) approved the “Southwest Plan” on February 3, 1988, to provide government assistance to induce private capital investors to bail out failed savings and loans in the southwestern United States. Under this program, FHLBB grouped insolvent thrifts into packages for sale to investors, and offered a wide variety of incentives, including guaranteed assistance payments, regulatory forbearances, and shared tax benefits. The goal of the Southwest Plan was to attract new capital and management to the thrift industry, eliminate branch redundancies, and reduce the operating expenses of failing thrifts. James Fail, on behalf of Lifeshares Group, Inc. (“Lifeshares”), an insurance company he owned, and Sidney Steiner, on behalf of the S/D Acquisition Group, entered into a partnership (“the Fail Group”) to acquire a group of fifteen insolvent thrifts" }, { "docid": "12925067", "title": "", "text": "merger of First Federal Savings and Loan Association of Wilmette (“Wilmette”) with three financially-troubled savings and loan associations. In exchange for Wilmette’s taking over these failing thrifts, the Federal Home Loan Bank Board (“FHLBB”) and the Federal Savings & Loan Insurance Corporation (“FSLIC”) agreed, among other things, to allow Horizon to use the supervisory goodwill created by virtue of the merger as an asset to satisfy its capital requirements and to amortize the goodwill over a period of forty years. As the directors and principal officers of Wilmette, Maher and Gravee played a large role in negotiating the terms of the merger that formed Horizon. Maher and Gravee allege that as part of these negotiations, the government required them to give up their existing pension plans from Wilmette with the understanding that Horizon could create comparable benefits for them when it became financially stable. In addition, the government allegedly required Maher and Gravee to become the directors and principal officers of Horizon. After these negotiations, Horizon was duly formed upon the execution of three merger agreements in March of 1982, followed by a vote of approval by the board of directors on November 5, 1982. In 1985, Horizon reestablished pension benefits for Maher and Gravee by creating a deferred compensation trust. Horizon established a second deferred compensation trust in 1987. The establishment of these trusts was reflected in employment and eompen sation agreements between Horizon and the appellants. On August 8, 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989) (“FIR-REA”). FIRREA “overhauled the structure of federal thrift regulation” by, among other things, prohibiting the use of supervisory goodwill as an asset to satisfy capital requirements. Castle v. United States, 301 F.3d 1328, 1333 (Fed.Cir.2002) (citing Winstar, 518 U.S. at 856, 116 S.Ct. 2432). Numerous thrifts, including Horizon, were unable to meet the new requirements of FIRREA. These thrifts were seized by the Office of Thrift Supervision (“OTS”) and placed into a receivership directed by the Resolution Trust Corporation (“RTC”), thus “spawn[ing] the Winstar litigation, in which the acquirors" }, { "docid": "12237492", "title": "", "text": "Opinion for the court filed by Chief Judge MIKVA. MIKVA, Chief Judge: In the mid-1980s, as the savings and loan industry deteriorated, the Federal Savings and Loan Insurance Corporation (FSLIC) and the Federal Home Loan Bank Board encouraged a number of healthy thrifts to acquire failing ones. The government agencies provided financial assistance to the acquiring thrifts, and they promised favorable accounting treatment. Granting capital or accounting forbearances, the banking regulators allowed the thrifts to count toward their minimum capital requirements “supervisory goodwill,” intangible assets created by the acquisitions. Appellants, Transohio Savings Bank and its holding companies (collectively referred to as “Transohio”), acquired two insolvent thrifts as part of such a “supervisory merger” in 1986. In 1989, in major legislation addressing what had become known as the S & L Crisis, Congress forbade thrifts from counting supervisory goodwill toward minimum capital requirements, finding that stricter capital standards were essential to ensure the safety and soundness of the savings and loan industry. See Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), Pub.L. No. 101-73, 103 Stat. 183 (1989). Soon after, the Office of Thrift Supervision (OTS), which had taken over the duties of FSLIC and the Bank Board, announced it would apply the new rules to all thrifts, including those that had received capital or accounting forbear-ances from the OTS’ predecessors. As a result of the new rules, some of the thrifts that had been involved in supervisory mergers found themselves dangerously near, or even below, minimum capital requirements. Many of those thrifts, including Transohio, sued the banking regulators, claiming that Congress did not, and could not, change the capital accounting rules for thrifts with forbearance agreements. They argued, typically, that FIR-REA, contrary to the OTS’ interpretation, exempted thrifts with forbearance agreements. And they argued, alternatively, that the forbearance agreements gave the thrifts a contractual right to count goodwill as capital, and that the breach of that contract violated common law rules as well as the Constitution; barring the thrifts from counting goodwill as capital, they said, was a taking of property without just compensation and (a few alleged) a deprivation" }, { "docid": "21712640", "title": "", "text": "thereof. RELEVANT FACTS AND PROCEDURAL BACKGROUND To date, the United States Court of Appeals for the Federal Circuit has issued twenty-six opinions implementing and interpreting a variety of legal issues in Winstar-related cases that chronicle in detail the financial crisis in the savings and loan (“thrift”) industry leading to the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”), Pub.L. No. 101-73,103 Stat. 183 (1989). See, e.g., Anderson v. United States, 344 F.3d 1343, 1345-47 (Fed.Cir.2003); Landmark Land Co., Inc. v. United States, 256 F.3d 1365, 1369-71 (Fed.Cir.2001); Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1376-78 (Fed.Cir.2001). Therefore, knowledge of the history of FIRREA and the teachings of Winstar are presumed, so the court will limit the narrative and discussion in this opinion to the facts and controlling law relevant to a resolution of plaintiffs’ pending summary judgment motion regarding liability. A. The Transohio Merger On August 29, 1985, FSLIC and FHLBB convened a conference of financial institutions and potential investors to market three financially troubled thrifts, including Citizens Federal Savings and Loan Association of Cleveland, Ohio (“Citizens”) and Dollar Savings Bank of Columbus, Ohio (“Dollar”). See PLApp. at 322-35. On October 23, 1985, Transohio Savings Bank, F.S.B. (“Trans-ohio”), a federally chartered stock savings and loan association, insured by FSLIC, submitted a proposal to acquire Citizens and Dollar. See PLApp. at 26-203. Transohio, FSLIC, and FHLBB continued good faith negotiations from October 1985 through July 1986. See Burstein Affidavit (Chairman of Transohio; Chairman, President and CEO of Transcapital Financial Corporation; and President and CEO of American Capital Corporation ) at S 8 (PI App. at 3). On August 21, 1986, FHLBB declared Citizens, a federally chartered, FSLIC-insured thrift institution insolvent. See PLApp. at 14-25. On August 21, 1986, FHLBB also declared Dollar, an Ohio chartered, FSLIC-insured mutual savings bank insolvent. Id. On August 21, 1986, FHLBB issued Resolution No. 86-864 conditionally approving a proposed Assistance Agreement between plaintiffs, Transohio, and the Government. See PLApp. at 14-23. The key terms of the Assistance Agreement signed by plaintiffs, Transohio, and FSLIC on August 29, 1986 were: 1)" }, { "docid": "21989337", "title": "", "text": "DYK, Circuit Judge. This is a Winstar damages case. See United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). The United States appeals the decision of the United States Court of Federal Claims, which awarded to Old Stone Corporation (“OSC”) $192.5 million in damages for the government’s breach of contract. Old Stone Corp. v. United States, 63 Fed.Cl. 65 (2004) (“Old Stone II”). The breach was the elimination of regulatory capital by the enactment of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIR-REA”), Pub.L. No. 101-73, 103 Stat. 183. We affirm the award of $74.5 million of post-breach mitigation payments, but reverse the award of $118 million of initial contributions. We conclude that the $118 million amount is not recoverable under a restitution theory because the appellant elected to continue performance under the contract to the benefit of the appellant and to the detriment of the government, and is not recoverable under a reliance theory because the damages were not foreseeable as a matter of law. BACKGROUND I Before the transactions that are the focus of this lawsuit, Old Stone Corporation (“OSC”) was a bank holding company headquartered in Rhode Island. Its primary subsidiary was a commercial bank, Old Stone Bank (“Old OSB” or “OOSB”), which was insured by the Federal Deposit Insurance Corporation (“FDIC”). This dispute had its genesis in the acquisition of two thrifts by OSC. The first transaction was an acquisition of a small thrift, Rhode Island Federal (“RIF”). In June 1984, OSC submitted a proposal to the Federal Savings and Loan Insurance Corporation (“FSLIC”) to acquire RIF with cash assistance from FSLIC. As a result of the acquisition, OSC would become a “thrift holding company” owning all of the stock of RIF. OSC would also obtain a federal savings bank charter which would permit it to engage in commercial lending while allowing it to expand into other geographical areas. FSLIC accepted OSC’s offer and approved the transaction in August 1984. The transaction involved the following steps: (1) RIF converted from a mutual savings institution to a Federal" }, { "docid": "21642654", "title": "", "text": "FRIEDMAN, Senior Circuit Judge. Once again, shareholders of a failed savings and loan association (also called a “thrift”) seek damages in this Winstar-related case for the government’s breach of its alleged contract with them to permit the thrift to use an accounting method favorable to it. The United States Court of Federal Claims dismissed the shareholders’ complaint because they had not shown that they had a contract with the government. Cain v. United States, 53 Fed.Cl. 658 (2002). We affirm. I A. The background and consequences of the savings and loan industry’s financial crisis in the 1980’s has been frequently described and need not be repeated here. See United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996); Landmark Land Co. v. FDIC, 256 F.3d 1365 (Fed.Cir.2001); Glass v. United States, 258 F.3d 1349 (Fed.Cir.2001). The crisis arose because the interest rates the thrifts had to pay on deposits were higher than the interest rates they received on their long-term real estate mortgages in which their capital was invested. The Federal Home Loan Bank Board (“Bank Board\"), the agency that regulated the thrifts, tried to alleviate the situation by encouraging economically healthy thrifts and individuals to acquire or invest in the financially troubled institutions. To induce such acquisitions or investments, the Bank Board permitted the troubled thrifts to follow accounting practices under which their capital for regulatory purposes included losses. In 1989, Congress reacted to this situation by enacting the Financial Institutions Reform, Recovery, and Enforcement Act (“Financial Reform Act”), Pub. L. No. 101-73, 103 Stat. 183. That Act, among other things, prohibited thrifts from employing those accounting practices. The result was that numerous thrifts no longer complied with the regulatory capital requirements and were placed in receivership. Many of them and their stockholders filed suits against the United States to recover their losses. The cases included claims for breach of contract and Fifth Amendment takings. In Winstar, the Supreme Court affirmed the decision of this court, 64 F.3d 1531 (1995), that “the United States is liable to respondents [three thrifts] for breach of contract.”" }, { "docid": "5465262", "title": "", "text": "of Federal Claims. The Supreme Court in Winstar affirmed the Federal Circuit’s ruling that the Government had entered into express contracts with three healthy savings and loan plaintiffs. See 518 U.S. at 860-62, 116 S.Ct. 2432. In exchange for acquiring failing thrifts (thereby saving the Government the cost of subsidizing them), the healthy thrifts received a promise from the Government that they would receive certain regulatory for-bearances, i.e., the use of purchase-method accounting and the ability to amortize a specified amount of supervisory goodwill over a stated number of years to satisfy regulatory capital requirements. This prom ise was memorialized in various -written agreements with the Federal Savings and Loan Insurance Corporation and the Federal Home Loan Bank Board (“FHLBB”). The agreements contained integration clauses that incorporated the contemporaneous writings of the parties. The Court held that the writings of the parties, coupled with the documentation incorporated through the integration clauses, evidenced express contractual agreements between the Government and plaintiff thrifts. Although the Government could not make a binding contract to agree not to exercise a sovereign power, the Supreme Court concluded that the Government “ ‘can agree in a contract that if it does so, it will pay the other contracting party the amount by which its costs are increased by the Government’s sovereign act.’ ” Winstar, 518 U.S. at 881-82, 116 S.Ct. 2432 (quoting Amino Bros. Co. v. United States, 178 Ct.Cl. 515, 372 F.2d 485, 491 (1967)). When Congress passed the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (“FIRREA”), it disallowed the use of the forbearances promised to the healthy thrifts. Thus, the Court held that the passage of FIRREA breached the Government’s express contracts with plaintiffs. The trial court decision in Glass, 44 Fed. Cl. 73, applied this principle to implied-in-fact contracts between thrifts and the Government. The Government in Glass contended that no contract was formed and that the forbearances granted to the acquiring thrift were a matter of “regulatory grace.” Id. at 76. However, the court concluded that plaintiff’s change-in-control notice (requesting eight forbearances and proposing" }, { "docid": "1327124", "title": "", "text": "OPINION BRUGGINK, Judge. This case is part of the Winstar litigation arising out of the savings and loan crisis of the late 1980s. This is the third in a series of opinions in this ease. Home Sav. of America, F.S.B. v. United States, 51 Fed.Cl. 487 (2002) (“Home Savings II”); Home Sav. of America, F.S.B. v. United States, 50 Fed.Cl. 427 (2001) (“Home Savings I”). The issue remaining is whether plaintiffs have proven damages from the breach of contract by the government found in Home Savings I, 50 Fed.Cl. at 442. Trial was held from February 3, 2003 to February 25, 2003 in Washington, D.C. For the reasons set out below, we find that plaintiffs have proven damages in the amount of $134,045,000. BACKGROUND Home Savings of America, F.S.B. (“Home Savings”) is a wholly owned subsidiary of H.F. Ahmanson and Co. (“Ahmanson”). In the 1980s, Home Savings was the largest thrift in the country. Based in California, it was conservatively run and weathered the savings and loan crisis significantly better than other thrifts. The majority of its assets were in single-family residential loans, funded by savings accounts. During the savings and loan crisis, federal regulators were seeking healthy thrifts, such as Home Savings, to take-over failing thrifts. Eventually, Home Savings took part in five transactions to acquire seventeen thrift institutions. These transactions are referred to herein as the: (1) Florida/Missouri transaction, (2) Texas/Illinois transaction, (3) Century transaction, (4) Ohio transaction, and (5) Bowery transaction. Each supervisory merger required the execution of assistance agreements with federal regulatory agencies. In Home Savings I, we determined that the government promised plaintiffs that supervisory goodwill acquired in connection with the above transactions could be counted towards regulatory capital requirements. Home Savings I, 50 Fed.Cl. at 442. We held further that the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (“FIRREA”), constituted a breach of the government’s contract with plaintiffs. We also held, however, that the Federal Savings and Loan Insurance Corporation (“FLSIC”) and the Federal Home Loan Bank Board (“FHLBB”) lacked the authority to" }, { "docid": "237318", "title": "", "text": "net worth requirements. By its terms, however, the supervisory forbearance was to last only five years, or until December 15, 1991. The third document, the assistance agreement, required the government to provide cash payments to Monycor to help relieve the losses embedded in the acquired thrift’s existing loan portfolio. Thus, under the terms of the agreement, the Federal Savings and Loan Insurance Corporation (“FSLIC”) was obligated to provide the thrift with (i) cash in the amount of the thrift’s adjusted negative net worth (the difference between its assets and liabilities, after certain agreed-upon adjustments to its balance sheet) and (ii) capital loss coverage, up to $9 million, on losses resulting from the thrift’s pre-acquisition, non-performing loan and real estate portfolios. The assistance agreement additionally specified that the cash paid to the thrift by FSLIC “shall be credited to [Monycor’s] net worth account,” meaning that such contributions were to be taken into account as a cash component of net worth rather than be treated as an offsetting deduction to supervisory goodwill. The parties refer to the treatment accorded the cash payments as the “capital credit.” The assistance agreement additionally incorporated by reference both the FHLBB resolutions and the FHLBB forbearance letter. On August 9, 1989, Congress passed the Financial Institutions, Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183 (codified as amended in various sections of 12 U.S.C.). FIRREA had the effect, in part, of preventing Monyeor from counting either its capital credit or its unamortized goodwill toward regulatory capital. In addition, FIRREA made it impossible for the thrift to report unreimbursed losses on pre-acquisition assets without also reporting lowered regulatory capital. Plaintiffs responded to FIRREA in three primary ways. As an initial matter, the thrift submitted a series of capital plans to the Office of Thrift Supervision (“OTS”), the regulatory agency established by FIRREA, proposing means by which the thrift might re-achieve capital compliance. These plans were deemed inadequate, however, in part because they would have failed to meet the Individual Minimum Capital Requirement (a higher-than-normal capital requirement reserved for institutions with higher risk) that" }, { "docid": "22440346", "title": "", "text": "grant of contract be construed as a conveyance or surrender of sovereign power.” Id. 116 S.Ct. at 2456. The Postal Service asserts that because it did not express such a waiver, the unmistakability doctrine precludes suit. Winstar involved the statutory annulment of contracts entered into in the 1980s between the Federal Savings and Loan Insurance Corporation (“FSLIC”) and various private purchasers of failing thrifts. As an incentive to take over these ailing institutions, whose liabilities exceeded their assets, the FSLIC allowed the purchasers to use a special accounting methodology in which the purchasers could designate the excess of their purchase price over the fair value of the thrifts as an intangible asset known as supervisory goodwill. The purchasers could then use this supervisory goodwill to fulfill the federal capital reserve requirements. Seaboard Lumber Co. v. United States, 41 Fed.Cl. 401, 413 (Fed.Cl.1998) (explaining Wins-tar ). In 1989, however, Congress passed the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”), which disallowed the use of supervisory goodwill in calculating capital reserve assets. Because of this new law, three of the ailing (and now newly purchased) thrifts fell out of compliance, and two ultimately failed. When the purchasers sued the government for breach of contract, the government asserted the defense that because the government acted as a sovereign when enacting FIRREA, the government as contractor could not be held liable for breach of contract. Seaboard Lumber Co., 41 Fed.Cl. at 413. In a plurality decision, the Supreme Court ruled in favor of the purchasers. The Court construed the contracts between the purchasers and FSLIC as risk-shifting agreements against any losses arising from future regulatory change. Winstar, 518 U.S. at 881, 116 5.Ct. 2432. In this respect, the Court found, the contracts did not “purport to bind the Congress from enacting regulatory measures.” Id. at 881,116 S.Ct. 2432. Further, the Court ruled that it would allow damages for breach of such a risk-shifting contract. Id. “[W]e hold that the terms assigning the risk of regulatory change to the Government are enforceable, and that the Government is therefore liable in damages for breach.” 518" }, { "docid": "350743", "title": "", "text": "Agency Services department was finally able'to persuade Franklin Federal Savings Bank of Morris-town, Tennessee, to do a voluntary supervisory conversion from mutual to stock. However, as a result of such transaction, Franklin Federal recorded $9.4 million in goodwill, while raising some $6 million in stock. As you will note on the attached June 21, 1989 memo, this resulted in an institution with regulatory capital of $6.2 million, or 5.9 % of assets; GAAP capital of $5.2 million, or 4.9 % of assets; but tangible capital of -$4 million, or -3.8 % of assets. However, the company has been profitable since the conversion as is shown on the attached three-year trend sheet, with an ROI [return on investment] of 1.4 % annualized for the first quarter of 1989. Perhaps [this example] may be helpful to you and the Bank Board in trying to achieve the proper flexibility in the proposed capital requirements. FIRREA and its Implementing Regulations On August 9, 1989, the Financial Institutions Reform, Recovery and Enforcement Act of 1989, P.L. No. 101-73, 103 Stat. 183, was enacted. As the Supreme Court noted in Winstar III, supra, “FIRREA made enormous changes in the structure of federal thrift regulation by (1) abolishing FSLIC and transferring its functions to other agencies; (2) creating a new thrift deposit insurance fund under the Federal Deposit Insurance Corporation [FDIC]; (3) replacing the Bank Board with the Office of Thrift Supervision (OTS), a Treasury Department office with responsibility for the regulation of all federally insured savings associations; and (4) establishing the Resolution Trust Corporation [RTC] to liquidate or otherwise dispose of certain closed thrifts and their assets.” 518 U.S. at 856, 116 S.Ct. 2432. FIRREA mandated that thrifts (1) maintain “tangible capital” in an amount not less than 1.5 % of the institution’s assets; (2) maintain “core capital,” as defined in the statute, in an amount not less than 3 % of the institution’s assets; and (3) maintain “risk-based capital” in an amount not materially less than that required for national banks. 12 U.S.C. § 1464(t)(l)(a). Pursuant to FIRREA supervisory goodwill could not be included at" }, { "docid": "14216840", "title": "", "text": "Opinion for the court filed by Circuit Judge GAJARSA, in which Chief Judge MAYER and Circuit Judges PAULINE NEWMAN, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, LINN, DYK, and PROST join. Concurring opinion filed by Circuit Judge MICHEL. GAJARSA, Circuit Judge. The history of the savings and loan crisis of the 1980s and the ensuing enactment of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183 (codified in scattered sections of 12 U.S.C.), is ably summarized in United States v. Winstar Corp., 518 U.S. 839, 843-58, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (“Winstar”). In this Winstar-related case, Coast Federal Bank, FSB (“Coast”) appeals the final judgment of the United States Court of Federal Claims granting partial summary judgment for the United States (“government”) on the issue of damages. Coast Fed. Bank, FSB v. United States, 48 Fed. Cl. 402 (2000). Because the Assistance Agreement (“Agreement”) unambiguously incorporates Generally Accepted Accounting Principles (“GAAP”), which require the amortization of goodwill, we affirm. I. BACKGROUND In 1987, Coast and the Federal Savings and Loan Insurance Corporation (“FSLIC”), an agency of the Federal Home Loan Bank Board (“Bank Board”), entered into a contract for Coast to acquire Central Savings and Loan Association of San Diego (“Central”), an insolvent thrift with net liabilities of $347 million. The Agreement included a $299 million cash contribution from FSLIC and treated this cash contribution as a credit to Coast’s regulatory capital. Coast made no payment from its own funds. The “Accounting Principles” clause of the Agreement states in pertinent part: Except as otherwise provided, any computations made for purposes of this Agreement shall be governed by generally accepted accounting principles as applied in the savings and loan industry, except that where such principles conflict with the terms of the Agreement, applicable regulations of the Bank Board or [FSLIC], or any resolution or action of the Bank Board approving or relating to the Acquisition or to this Agreement, then this Agreement, such regulations, or such resolution or action shall govern. Agreement § 20, Accounting Principles. The Agreement also includes a provision" }, { "docid": "1327125", "title": "", "text": "of its assets were in single-family residential loans, funded by savings accounts. During the savings and loan crisis, federal regulators were seeking healthy thrifts, such as Home Savings, to take-over failing thrifts. Eventually, Home Savings took part in five transactions to acquire seventeen thrift institutions. These transactions are referred to herein as the: (1) Florida/Missouri transaction, (2) Texas/Illinois transaction, (3) Century transaction, (4) Ohio transaction, and (5) Bowery transaction. Each supervisory merger required the execution of assistance agreements with federal regulatory agencies. In Home Savings I, we determined that the government promised plaintiffs that supervisory goodwill acquired in connection with the above transactions could be counted towards regulatory capital requirements. Home Savings I, 50 Fed.Cl. at 442. We held further that the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (“FIRREA”), constituted a breach of the government’s contract with plaintiffs. We also held, however, that the Federal Savings and Loan Insurance Corporation (“FLSIC”) and the Federal Home Loan Bank Board (“FHLBB”) lacked the authority to make promises to plaintiffs regarding supervisory goodwill with respect to those Ohio thrifts which were not federally insured. Id In Home Savings II, we dismissed plaintiffs’ takings claim, finding that no property interest had been taken for public use. Home Savings II, 51 Fed.Cl. at 495. Additionally, we held that H.F. Ahmanson, as a participant in the acquisition, is a proper party plaintiff in this action. Ahmanson entered into an implied-in-fact contract with FHLBB for the acquisition by Home Savings of the thrifts in each transaction. The government promised Ahmanson that Home Savings could utilize supervisory goodwill as regulatory capital. Id at 499. What remained for trial was a determination of whether, and to what degree, plaintiffs were harmed by the disallowance of supervisory goodwill by FIRREA. FACTS A. Home Savings’ Business Practices The modern savings and loan industry has been highly regulated since the Great Depression, when FHLBB and FSLIC were created. See Winstar, 518 U.S. at 844, 116 5. Ct. 2432. From that time forward, thrifts have been subject to regulations regarding their" }, { "docid": "13907364", "title": "", "text": "BRYSON, Circuit Judge. This case, like others that have reached this court in the wake of the Supreme Court’s decision in United States v. Winstar, 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), involves a claim of breach of contract based on the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act (“FIR-REA”), Pub.L. No. 101-73, 103 Stat. 183 (1989). In the 1980s, in the midst of the savings and loan crisis, the Federal Savings and Loan Insurance Corporation (“FSLIC”) arranged for various healthy financial institutions to acquire failing savings and loan associations (or “thrifts”). FSLIC settled on the acquisition strategy to minimize the number of outright failures among savings and loan associations and the consequent financial burden on FSLIC, as insurer of the deposits of many of those thrifts. Because the failing thrifts were unattractive investment prospects on their own, FSLIC had to offer substantial incentives to the acquiring institutions to induce them to acquire the failing thrifts and take on their liabilities. The inducements frequently consisted of promises regarding the manner in which the acquiring institutions would be permitted to treat the acquired thrifts’ assets and liabilities for accounting purposes. In many instances, FSLIC promised the acquiring institutions that they would be allowed to include the acquired thrifts’ net liabilities as “supervisory goodwill” in their calculation of regulatory capital and to amortize the supervisory goodwill over a lengthy period of time. In 1981 and 1982, appellant California Federal Bank (“CalFed”) acquired the assets and assumed the liabilities of six failing thrifts in acquisitions supervised or approved by FSLIC or its parent, the Federal Home Loan Bank Board (“the FHLBB”). As part of the acquisition transactions, FSLIC and the FHLBB promised CalFed that it could include more than $600 million in “supervisory goodwill” in calculating its regulatory capital and that it could amortize that supervisory goodwill over an extended period. After the enactment of FIRREA in 1989 and the promulgation of conforming regulations, however, acquiring institutions such as CalFed were no longer permitted to include supervisory goodwill as part of their regulatory capital, and they were" }, { "docid": "18395036", "title": "", "text": "receives remuneration from outside income of said firm.” C. Enactment ofFIRREA On August 9, 1989, the Government enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183 (1989), which restricted Centereach’s ability to count supervisory goodwill and capital credit toward compliance with its tangible capital requirement. As the Supreme Court noted in Winstar, 518 U.S. at 857, 116 S.Ct. 2432, “[t]he impact of FIR-REA’s new capital requirements upon institutions that had acquired failed thrifts in exchange for supervisory goodwill was swift and severe.” Many institutions fell out of compliance and were either seized by government regulators or stayed in business only after “massive private recapitalization.” Id. at 857-58, 116 S.Ct. 2432. “With FIRREA, Centereach’s capital ratio plummeted from more than 8% positive to a negative 11 LISB Trial, 67 Fed. Cl. at 623. In addition, the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”), Pub.L. No. 102-242, 105 Stat. 2236 (1991), established sanctions through regulation to institutions deemed undercapitalized. The management of LISB and Centereach thus embarked on a restructuring plan, which involved selling branches, securities, and loans, paying down other borrowings, merging LISB and Centereach, and writing off goodwill. LISB Trial, 67 Fed.Cl. at 625, 627-28. Several institutions sued the government “[bjelieving that [FHLBB] and FSLIC had promised them that the supervisory goodwill created in their merger transactions could be counted toward regulatory capital requirements,” and the Supreme Court subsequently held in Winstar that neither the canon of unmistakeability nor the doctrine of sovereign acts prevented the government from being liable for breaching contracts by subsequently changing the relevant law. 518 U.S. at 843, 858, 860, 116 S.Ct. 2432. D. Complaint Against the Government, the Discovery of Conway’s Law Firm Compensation, and the Government’s Affirmative Defenses With the enactment of FIRREA, Conway hired an outside law firm to advise the banks. See Doe v. Poe, 595 N.Y.S.2d 503, 189 A.D.2d 132 (1993). In February 1990, Conway, the banks’ president, the outside law firm, and another outside law firm that Conway had hired for the banks met to discuss a lawsuit" }, { "docid": "21658839", "title": "", "text": "and FSLIC were encouraging mergers between healthy banks and failing thrifts, and would typically offer certain regulatory forbearances in order to encourage such mergers. One such forebearanee was called “supervisory goodwill.” Supervisory goodwill was an accounting device that permitted the acquired thrift to record as an asset on its books a certain dollar amount for goodwill. This intangible asset, which assisted in satisfying regulatory capital requirements, was gradually written off as a business expense over a period of 25-40 years. Typically, this amount would be the difference between the value of the acquired thrift’s net liabilities and the acquired thrift’s net assets. Among other requested forbearances, Sentry sought approval of supervisory goodwill by the FHLBB and FSLIC in connection with its proposed purchase of Security Savings. After an extended period of negotiation, the FHLBB and FSLIC approved Sentry’s acquisition of Security Savings in the manner described, and allowed the recapitalized Security Savings to record approximately $6 million in supervisory goodwill capital. Security Savings proceeded to amortize this goodwill on a 25-year, straight-line basis, as outlined in its business plan. In August 1989, Congress enacted the Financial Institutions Recovery, Reform and Enforcement Act (“FIRREA”). Pub.L. No. 101-73,. 103 Stat. 183 (1989). FIRREA imposed new regulatory capital requirements on thrifts and, as a result, Security Savings was severely restricted in its use of goodwill capital to meet capital requirements. Security Savings immediately fell out of regulatory compliance and was thereafter, in May 1990, seized by the Office of Thrift Supervision (“OTS”) and placed into a receivership directed by the Resolution Trust Corporation (“RTC”). Security Savings was eventually liquidated and all its remaining assets, including its breach of contract claims, now reside in the FSLIC Resolution Fund-RTC (“FRF-RTC”), which is managed by the FDIC. See Glass, 44 Fed.Cl. at 81. On June 25, 1992, the shareholders filed suit against the United States in the Court of Federal Claims, asserting breach of contract and 5th Amendment takings claims. The shareholders contended that FIRREA breached a contract with the government allowing Security Savings to record goodwill capital and to use this intangible asset to meet" }, { "docid": "6654337", "title": "", "text": "[Globe’s] net worth account and shall constitute regulatory capital as defined in § 561.13 of the Insurance Regulations, 51 Fed.Reg. 33,565 (1986) (to be codified at 12 C.F.R. § 561.13 (1987) ). Id., Ex. 14 at App. 393 (Assistance Agreement § 3 at 24). Ultimately, the FSLIC contributed cash to Globe totaling approximately $54.8 million. Globe used the capital credit forbearance to credit this amount to regulatory capital. Globe further reported approximately $6.8 million of supervisory goodwill through the use of push-down accounting. Pursuant to the FHLBB Resolution and the Forbearance Letter, Globe was permitted to amortize the capital credit and goodwill over a period of up to 25 years. C. The Financial Institutions Reform, Recovery and Enforcement Act While Globe had been promised certain regulatory forbearances in its agreements with the FHLBB and the FSLIC, Congress drastically altered the regulatory environs effectively to forbid the use of a number of these forbearances with the enactment of the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”) on August 9, 1989. Pub.L. No. 101-73, 103 Stat. 183 (1989). See generally, Winstar III, 518 U.S. at 856-58, 116 S.Ct. 2432. Specifically, FIR-REA established three new capital standards: (1) “tangible” capital, which was to be maintained “in an amount not less than 1.5 percent of the savings association’s total assets;” (2) “core” capital, which was to be maintained “in an amount not less than 3 percent of the savings association’s total assets;” and (3) “risk-based” capital, which was to be maintained at a level that was not to be “materially” lower than that required of national banks. 12 U.S.C. § 1464(t) (1994). Under FIRREA, unidentifiable intangible assets (such as supervisory goodwill) could not be counted towards “tangible” capital, were to be phased out of calculations for “core” capital by 1995, and had to be amortized over 20 years for the purposes of calculating “risk-based” capital. Id. § 1464(t)(3)(A), (t)(9)(A)(C). Finally, the Act abolished the FSLIC and created a new insurance fund to be managed by the Federal Deposit Insurance Corporation (the “FDIC”). The Act also replaced the Bank Board with the Office of" } ]

[ { "docid": "1950074", "title": "", "text": "professionally packaged or labeled, the promotional labels or trademarks did not appear on the packaging or labeling of the videocassettes which are present on authorized tapes, the cassettes lacked the heat stamps, or the quality of each cassette was inferior to authorized tapes. Investigator Aff. ¶ 6. The investigator also states that there are approximately 4,000 videocassettes in each of the defendants’ stores and that of these 400 are unauthorized videocassettes of plaintiffs’ films. He does not explain how he arrived at these conclusions. Investigator Aff. ¶ 8. In the proposed order, the plaintiffs seek authorization to seize infringing videotapes and machines used to produce them located at the business premises of the defendants, as well as authorization to seize such materials at any location where defendants or then-agents may be found within the Eastern District of New York. Plaintiffs have not provided a description of the defendants’ places of business or a description of where the videocassettes are stored and likely to be found on the respective premises. To be clear, plaintiffs seek authorization to seize videocassettes which infringe the copyrights of the films identified above and also authorization to seize any videocassette which infringes any other copyright held by the plaintiffs. Plaintiffs do not explain how the seizure would be effected and, in particular, how infringing tapes will be identified during the execution of the seizure order. DISCUSSION Impoundment Under the copyright laws, a copyright owner may seek to impound infringing material. See 17 U.S.C. § 503(a). Moreover, the impoundment may in appropriate circumstances occur at the commencement of an action for copyright infringement. See, e.g., Wallace Berrie & Co. v. Custom Styled Toys, CV 82-1820, 1982 WL 1288 (E.D.N.Y. Aug. 16, 1982), reprinted in Copyright Law Reports, ¶ 25,492 (CCH 1981-83). Congress explicitly provided for the availability of impoundment in section 503(a) of the Copyright Act of 1976, which states: At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies ... claimed tó have been made or used in" } ]

[ { "docid": "22764935", "title": "", "text": "OPINION OF THE COURT WEIS, Circuit Judge. The district court granted summary judgment for defendants in this copyright infringement suit but denied statutory counsel fees without discussion. Because we are unable to determine whether the district court properly exercised its discretion, we will remand for an articulation of reasons. In an effort to assist the district courts, we review some of the factors pertinent to the award of fees under the Copyright Act as well as to the matter of sanctions under Fed.R.Civ.P. 11, which has also been invoked here. Plaintiff had conceived the idea of an audio-cassette tape of sounds appropriate for Halloween. After producing and copyrighting his recording, titled “Haunted Horror,” he entered into an agreement designating defendant Topstone Industries as the exclusive distributor. Topstone later terminated the contract and began marketing a similar Halloween cassette titled “Horror Sounds of the Night.” After purchasing copies of the plaintiff’s tape from Topstone, defendant D. Robbins & Co. sold those copies, as well as Topstone’s “Horror Sounds” tape, to retail customers. On learning of the defendants’ activities, plaintiff filed a complaint in the district court alleging copyright infringement and pendent state law claims of breach of contract and bad faith. During the course of discovery, plaintiff admitted he was not contending that any portion of Topstone’s tape had been copied from the Haunted Horror production. Defendants moved for summary judgment, asserting that they had not violated the Copyright Act. In response, plaintiff argued that he believed in good faith that the defendant’s tape was an “imitation of format, style, concept and content of plaintiff’s copyrighted work” and would cause confusion in the public mind. Defendants requested attorney’s fees, contending that the copyright infringement claim was filed in bad faith, was frivolous, and should not have been brought after reasonable investigation. The district court determined that the Copyright Act, 17 U.S.C. § 114(b), precludes duplication of a “sound recording [through forms that] directly or indirectly recapture the actual sounds fixed in the recording.” The court granted summary judgment, concluding that defendants had not violated the Act because the legislative history makes" }, { "docid": "1950094", "title": "", "text": "films for which plaintiffs hold the copyright. Finally, plaintiffs have not stated with sufficient particularity how infringing videocassettes will be distinguished from legitimate ones. Although plaintiffs describe in general how an unauthorized videocassette may be distinguished from an authorized one, they have not stated that all of the distinguishing markings of an authorized videocassette are present on the authorized videocassettes of films at issue here. Moreover, the criteria to be applied by the U.S. Marshal are in some cases extraordinarily subjective and, in effect, place the decision to seize or not in the hands of plaintiffs’ expert rather than the U.S. Marshal. While plaintiffs state that “some of the distributing companies manufacture the cassette cartridge containing the tape” with a heat stamp, see Corrigan Aff. ¶ 5(B) (emphasis added); Investigator Aff. ¶3, plaintiffs nowhere claim that the heat stamp is present on all authorized videocassettes of the films at issue in these two actions. Order Sealing File Plaintiffs’ request to seal the court files in these two actions until defendants have notice of this action or any impoundment order is executed is hereby granted on condition that plaintiffs file within ten days of the date of this decision an additional set of papers redacting the names of the defendants, the names of their businesses and corresponding addresses, as well as the dates of the investigator’s visits to the defendants’ stores. This Memorandum and Order will not be sealed; however, the defendants’ names will be omitted from the caption. Plaintiffs’ request to seal the affidavits of the investigator in these cases is also granted pending further order of this or any reviewing court. SO ORDERED. . Plaintiffs in the first action are Paramount Pictures Corporation, Universal City Studios, Inc., TriStar Pictures, Inc., Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, The Walt Disney Co., Metro-Goldwyn-Mayer Inc., Warner Bros., Best Film & Video Corp., Foxvideo Inc., Live Home Video/Live America Inc., Million Dollar Video Corp., Columbia/TriStar Home Video, and Republic Pictures Corp. Plaintiffs in the second action are Twentieth Century Fox Film Corporation, Universal City Studios, Inc., Columbia Pictures Indus., Inc.," }, { "docid": "1950088", "title": "", "text": "specifics either about the defendants in these actions or others. Nothing in plaintiffs’ applications explains why a temporary restraining order would not suffice here. See Van Deurzen, supra (denying ex parte application for impoundment but inviting plaintiffs to file á motion for temporary restraining order); WPOW, Inc., 584 F.Supp. at 135 n. 10 (noting that TRO may be more appropriate). Although in some circumstances notice of an infringement action prior to seizure effectively may deny a plaintiff relief, see In re Vuitton Et Fils S.A., 606 F.2d 1, 5 (2d Cir.1979) (directing the district court to issue an ex parte temporary restraining order - in a trademark infringement case where notice repeatedly in the past had enabled the defendant to dispose of infringing materials and “serve[d] only to sender fruitless further prosecution of the action”), the plaintiffs here have made no showing to support their conclusory allegations that the defendants here are savvy film pirates; nothing in the present applications suggests that defendants are engaged primarily in illegitimate and infringing activities and are thus likely to disregard an order from this Court preventing them from disposing of or destroying any videoeassettes on their business premises. See Owens, supra at 253 (suggesting that impoundment may be necessary where defendants primarily engage in infringing conduct). On the contrary, on the basis of plaintiffs’ submissions, it appears that defendants are business people operating legitimate video rental and retail stores. Thus, plaintiffs have not shown satisfactorily that the present cases pose exigent circumstances such that postponing notice and a hearing until after the seizure is effected is appropriate. See Doehr, — U.S. at -, 111 S.Ct. at 2115. Additionally, the plaintiffs have made no showing regarding the practices of the video rental trade, the operation of licensing agreements, and the process of obtaining authorized tapes. Thus, on the current record, there is no basis on which to appraise plaintiffs’ claims that defendants are in fact producing unauthorized copies of tapes, as opposed to buying the tapes from another who holds himself out as a representative of plaintiffs or obtaining possession of the allegedly infringing" }, { "docid": "13490750", "title": "", "text": "we affirm the order of the district court, 498 F.Supp. 1057. I. The prosecution is for criminal infringement of copyright and related offenses. Defendants Lee Cook and Jackie B. Kirk are charged with illegally reproducing copyrighted motion pictures onto videotape cassettes and then renting those cassettes for profit. Federal officers conducted an investigation of the operations of the defendants for some time before going before a United States magistrate for a warrant to search their place of business, The Company of Actors Theater. Probable cause was shown to the magistrate by a nine page affidavit, which justified a belief that Jim Cook and Lee Cook had illegally obtained and reproduced copyrighted films, that they rented tapes of those movies and distributed them out of the premises to be searched, that Lee Cook had admitted that “many” of his films were illegal, that many videotape cassettes were stored on open shelves on three walls around or near the projection room, and that defendants’ place of business contained equipment that could be used to reproduce films onto videotape. The affidavit states that it had attached to it a brochure and a list of the films available from defendants’ operation, but we do not find that attachment in the record. The Government’s brief states that a catalogue of “pirated motion pictures” was presented with the warrant. The warrant directed the seizure of the following described property: Illegally obtained and reproduced copyrighted films of which there have been no first sales by the copyright owners, and recorded video tape cassettes on to which these illegally obtained and copyrighted films of which there have been no first sales have been electronically transferred and recorded, including but not limited to the motion pictures described in the affidavit, M recorded video tapes of those aforementioned films but not limited to them; electronic transfer and playback equipment capable of transferring film to video tape and video tape to video tape, and capable of playback and exhibition of those tapes, used in the production, reproduction, manufacture and distribution of recorded video tapes containing copyrighted motion pictures on which there" }, { "docid": "1950092", "title": "", "text": "239-43. In the present case, plaintiffs’ applications are deficient on Fourth Amendment grounds in at least one respect. The plaintiffs’ proposed seizure order does not specify with particularity the premises to be searched or the articles to be seized. See generally 3 LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment § 10.2(f), at 660-64 (2d ed.1987). The particularity requirement “ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987); see also Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); United States v. Buck, 813 F.2d 588, 590 (2d Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121 (1987). Thus, the scope of a lawful search must be delineated by the object of the search and the places in which there has been a showing that the object is likely to be found. See Garrison, 480 U.S. at 84, 107 S.Ct. at 1016; In re Impounded Case (Law Firm), 840 F.2d 196, 200 (3d Cir.1988). The requested order in the present cases is too broad in two respects. First, the requested order permits the plaintiffs not only to seize infringing videocassettes and the machines used to produce them at the defendants’ places of business but also to seize such materials at any location where defendants or their agents may be found within the Eastern District of New York. Plaintiffs have provided no justification for this roving warrant. Second, plaintiffs request an order to seize any videocassette which infringes any copyright held by one of the plaintiffs, which would effectively avoid a restriction limiting plaintiffs’ authorized seizure to infringing videocassettes of the six films in each case for which plaintiffs have provided copyright certificates. Such an order would abrogate the requirement that plaintiffs make a showing of the merits of their underlying claim of infringement and that the defendants possess infringing tapes of the" }, { "docid": "1950099", "title": "", "text": "history of the 1976 Act, the House Report makes a brief comment on the Copyright Rules: The same subsection [section 503(a) ] empowers the court to order impounding \"on such terms as it may deem reasonable.” The present Supreme Court rules with respect to seizure and impounding were issued even though there is no specific provision authorizing them in the copyright statute, and there appears no need for including a special provision on ... the point in the bill. H.R.Rep. No. 94-1476, 94th Cong., 2d Sess., reprinted in 1976 USCCAN 5659, 5776. Although this statement is ambiguous, it suggests that the Copyright Rules were not incorporated into the 1976 Act because the discretionary nature of the right to impoundment in section 503(a) renders the rules inapposite. . Rule 65, providing basically the same safeguards for a defendant's rights as those outlined in Mitchell, allows a temporary restraining order to issue without notice to a defendant only where the movant (1) has shown through specific facts that immediate and irreparable injury will result in the absence of the order and (2) justifies the claim that notice should not be required. Fed. R.Civ.P. 65(b). The rule also requires that, when a TRO has issued without notice, the motion for a preliminary injunction \"shall be set down for hearing at the earliest possible time.” Id. . Plaintiffs have established the following two elements of a prima facie claim of copyright infringement: (1) that they own valid copyrights of the motion pictures at issue; and (2) that the defendants violated one of the exclusive rights vested in plaintiffs as copyright holder. Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir.1985). Plaintiffs have shown that they own valid copyrights of the products at issue in the two actions by submitting copies of the copyright certificates. 17 U.S.C. § 410(c) (certificate of registration constitutes prima facie evidence of the validity of the copyright). Moreover, they have provided affidavits stating that defendants were not licensed to produce or distribute copies of the films for which plaintiffs hold the copyright. Both unauthorized production and" }, { "docid": "13490751", "title": "", "text": "videotape. The affidavit states that it had attached to it a brochure and a list of the films available from defendants’ operation, but we do not find that attachment in the record. The Government’s brief states that a catalogue of “pirated motion pictures” was presented with the warrant. The warrant directed the seizure of the following described property: Illegally obtained and reproduced copyrighted films of which there have been no first sales by the copyright owners, and recorded video tape cassettes on to which these illegally obtained and copyrighted films of which there have been no first sales have been electronically transferred and recorded, including but not limited to the motion pictures described in the affidavit, M recorded video tapes of those aforementioned films but not limited to them; electronic transfer and playback equipment capable of transferring film to video tape and video tape to video tape, and capable of playback and exhibition of those tapes, used in the production, reproduction, manufacture and distribution of recorded video tapes containing copyrighted motion pictures on which there have been no first sales by the copyright owners and which are violations of Title 17, U.S.Code, Section 104(a) and all records, books, contracts of sale, rental and/or lease of any copyrighted films and for video cassettes. The films, recorded video tapes containing those films, and instrumentalities are used and have been used to commit violations of Title 17, United States Code, Section 104(a). The warrant was executed by six or seven federal officers who conducted a seven and one-half hour search and seized 1,317 items, listed in a 52 page inventory. Defendant Lee Cook moved to suppress “any and all evidence” obtained during the execution of the warrant. After a hearing, the district judge granted the motion. The Government then took this appeal. See 18 U.S.C. § 3731 (1976). II. The Fourth Amendment to the Constitution of the United States provides that search warrants may be issued only on probable cause “particularly describing the place to be searched, and the persons or things to be seized.” A general order to explore and rummage through" }, { "docid": "9411242", "title": "", "text": "CHOY, Circuit Judge: This interlocutory appeal requires construction of the remedial and compulsory license provisions of the Copyright Act of 1909, 17 U.S.C. §§ 1(e) and 101(c), (d) and (e). Appellants are a group of music companies which own the copyrights to musical compositions by such diverse and well-known musicians as Elvis Presley, Johnny Cash, Burt Bacharach, Mick Jagger, Joni Mitchell, and Buck Owens. They allege that appellee Pearl Rosner and others are music pirates who make cassette tape recordings of phonograph records legitimately issued by appellants from copyrighted compositions. After a nationwide search, appellants discovered a major pirate haven in Phoenix, Arizona. With the aid of private investigators and the local police, they obtained sufficient information to secure from the District Court an ex parte order to show cause, a temporary restraining order and a writ of seizure, all directed against the alleged pirates. The writ of seizure, issued pursuant to 17 U.S.C. § 101(c) and the Rules of Practice issued by the Supreme Court, directed the marshal to seize “ . . . any and all parts of instruments serving to reproduce mechanically plaintiffs’ copyrighted musical works and all means for making the same, comprehending labels, cartridges, tape recordings and machinery utilized in the manufacturing process, including Livingston recording machine —side winder, Jagerberg-Werke AG brand tape machines, Weldotron brand equipment, GRT tape winders and Craig testing tape players . . . ” The marshal seized and impounded 25,000 complete tape recordings and master recordings, which serve to reproduce mechanically appellants’ copyrighted musical compositions; blank tapes and cartridges designed for use in the manufacture of tape recordings; printed labels; machinery used to transfer the sounds onto blank tapes; packaging and promotional materials; and other equipment and machinery utilized in the manufacturing process. Appellants filed the requisite bond. Only appellee Rosner, who does business as National Manufacturing Company, appeared and contested the seizure order. She objected to the order’s scope on the ground that the statutory authority for seizure and the Supreme Court rules implementing that authority contemplate the seizure and impoundment only of items of “ . . ." }, { "docid": "16364158", "title": "", "text": "statistics in its studies, \"there are occasions when an investigator has a group that does these statistics____\" Tr. 1-171. . On or about January 11, 1991 the court consolidated the copyright infringement action with the product liability case for purposes of determining the issues raised in plaintiffs’ Motion to Remove Confidentiality Designation in the products liability case and Defendant’s Motion for a Temporary Restraining Order and Preliminary Injunction in the copyright infringement action. Thereafter, pursuant to Rule 65, Fed.R.Civ.P., the court advanced and consolidated Upjohn’s application for a preliminary injunction in the copyright infringement case with the trial of that action on the merits, and combined that trial with the hearing of the motion to remove confidentiality designation in the products liability case. On January 17, 1991, the court entered an order of consolidation in the products liability and the copyright infringement actions. . Title 17, Section 411(a) (1982 & Supp.1991) provides in pertinent part: ‘‘[N]o action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title.” . Section 410(c) of the Act provides in relevant part: (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. . (1) The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. 17 U.S.C. § 408(c) (1982 & Supp.1991) (emphasis added). . Seven such published works were admitted into evidence as trial Exhibits C through I. Also, it was established that over" }, { "docid": "1950070", "title": "", "text": "MEMORANDUM AND ORDER SIFTON, District Judge. In these two copyright infringement actions based on allegations of film piracy, the plaintiffs apply ex parte for an Order of Seizure directing the United States Marshal to accompany plaintiffs’ experts to the business locations of each defendant and to seize and impound infringing videocassettes and the equipment used in manufacturing the allegedly infringing products. Plaintiffs also request that the court files in these cases be maintained under seal until the seizure order is granted and executed and that the affidavit of plaintiffs’ investigator be maintained under seal pending further order of the Court. For the following reasons, the plaintiffs’ ex parte application for an order of seizure in each case is denied. The applications to seal the court files (with the exception of this opinion) and the investigator’s affidavit are granted subject to the conditions set forth below and the order of this or any reviewing court. These cases involve allegations of “film piracy,” i.e., the unlawful reproduction and sale or rental of videocassettes. Plaintiffs in both actions are corporations that produce and distribute motion pictures and are coordinating their efforts against film piracy. The defendant in the first action is a person identified by name in the sealed affidavits who allegedly owns and operates a retail video business located in Flushing, New York. The defendant in the second action is another person also identified in the sealed affidavits who allegedly owns and operates a retail video business located in Astoria, New York. Both sets of plaintiffs claim that defendants do not and did not at any relevant time have a license agreement with plaintiffs authorizing the duplication for sale or rental of any motion picture. Kaplan Aff. ¶ 6; Corrigan Aff. ¶ 9. In the first action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Honey, I Blew Up the Baby, The Last of the Mohicans, A League of Their Own, Mo’ Money, Sneakers, and South Central. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for" }, { "docid": "1950073", "title": "", "text": "inferior to authorized videocassettes in that when viewed the image, sound and color projections are “less clear” than the image, sound and color of an authorized tape; (2) an unauthorized tape may not bear a distinctive “heat stamp,” which is a distinc tive molding imprinted on the plastic cassettes by “some of the major film companies”; (3) the packaging of an unauthorized tape may not be “professional” and may not contain promotional labels, “distinctive” art work or trademarks of the respective film companies. Investigator Aff. ¶¶2, 3. As noted, plaintiffs offer the U.S. Marshal the assistance of their experts in identifying the infringing tapes to be seized. In both cases, the investigator states that during a specified period of time he rented a total of six videoeassettes from each defendant and that all six were unauthorized copies. The six films rented by the investigator in each case are the films for which the plaintiffs hold the copyright identified above in each case. The investigator determined that the films are unauthorized either because they were not professionally packaged or labeled, the promotional labels or trademarks did not appear on the packaging or labeling of the videocassettes which are present on authorized tapes, the cassettes lacked the heat stamps, or the quality of each cassette was inferior to authorized tapes. Investigator Aff. ¶ 6. The investigator also states that there are approximately 4,000 videocassettes in each of the defendants’ stores and that of these 400 are unauthorized videocassettes of plaintiffs’ films. He does not explain how he arrived at these conclusions. Investigator Aff. ¶ 8. In the proposed order, the plaintiffs seek authorization to seize infringing videotapes and machines used to produce them located at the business premises of the defendants, as well as authorization to seize such materials at any location where defendants or then-agents may be found within the Eastern District of New York. Plaintiffs have not provided a description of the defendants’ places of business or a description of where the videocassettes are stored and likely to be found on the respective premises. To be clear, plaintiffs seek authorization" }, { "docid": "14197211", "title": "", "text": "The Marshall & Melhorn firm held the seized materials in trust for eight days until the district court held a hearing that dealt with a motion Vector had made to vacate the im-poundment order. The district court denied Vector’s motion, concluding that either the Copyright Act, the Copyright Rules, or Rule 65 authorized the ex parte order. Marshall & Melhorn then transferred the impounded materials to the custody of the district court. Vector appealed, and this court held that the district court had abused its discretion in issuing the order. First Technology Safety Sys., 11 F.3d at 652. This court rejected Vector’s arguments that the order failed to comply with the technical requirements of the Copyright Rules, but did hold that the order was “too broad to fall within the authorization of 17 U.S.C. § 503 and the Copyright Rules.” Id. at 649. This court noted that section 503(a) of the Copyright Act authorizes the impoundment of materials that infringe copyrights, or equipment that can be used to copy infringing goods, and that the Copyright Rules authorize seizures and mandate the return of articles seized for any reason not appropriate under the Copyright Act. The court reasoned, however, that the business records seized were neither infringing goods nor materials that could be used to copy such goods, but rather were only “possible evidence of the alleged infringement.” Id. Because this court saw no congressional intent to give a copyright holder a means to preserve evidence generally, it held that Vector’s business records were not subject to impoundment under the statute, and thus that portion of the order was not authorized by law. Moreover, this court stated that because section 503 did not authorize the order as issued, the Copyright Rules did not provide the proper procedure for obtaining it, and thus the district court should have proceeded under Rule 65(b) to determine the propriety of granting injunctive relief ex parte. Id. at 649-50 (citations omitted). The court stated that, on the rare occasions when ex parte temporary restraining orders are proper, they “should be limited to preserving the status quo" }, { "docid": "21609469", "title": "", "text": "Supreme Court enacted a set of copyright rules, The Rules of Practice, as it was authorized to do by section 25(e) of the 1909 Act, 35 Stat. at 1082, it provided in Rule 4 that a writ for seizure of infringing articles should be “directed to the marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same subject to the order of the court issuing said writ, or of the court of the district in which the seizure shall be made.” Rule 5 directs the marshal to seize the articles “using such force as may be reasonably necessary in the premises,” and to “make immediate return of such seizure, or attempted seizure, to the court.” Rule 6 provides that “[a] marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the court.” Section 503(a) of the 1976 Copyright Act, 90 Stat. at 2585, codified as section 503(a) of Title 17 of the United States Code, provides that the “court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.” As Attorney Bainton interprets this section, it authorizes a court to direct a private person employed by the plaintiffs attorney to “search” an alleged infringer’s premises, seize the materials specified in section 503(a), and deliver them to the attorney. The private person, says Bainton, also may be directed to seize and deliver to plaintiff’s attorney all books, records, correspondence or other documents related to the alleged infringing materials or which may provide information respecting the vendors or purchasers of the" }, { "docid": "14197212", "title": "", "text": "Rules authorize seizures and mandate the return of articles seized for any reason not appropriate under the Copyright Act. The court reasoned, however, that the business records seized were neither infringing goods nor materials that could be used to copy such goods, but rather were only “possible evidence of the alleged infringement.” Id. Because this court saw no congressional intent to give a copyright holder a means to preserve evidence generally, it held that Vector’s business records were not subject to impoundment under the statute, and thus that portion of the order was not authorized by law. Moreover, this court stated that because section 503 did not authorize the order as issued, the Copyright Rules did not provide the proper procedure for obtaining it, and thus the district court should have proceeded under Rule 65(b) to determine the propriety of granting injunctive relief ex parte. Id. at 649-50 (citations omitted). The court stated that, on the rare occasions when ex parte temporary restraining orders are proper, they “should be limited to preserving the status quo only for so long as is necessary to hold a hearing.” Id. at 650 (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974)). Applying that maxim and the language of Rule 65(b) to the facts, this court held that FTSS failed to demonstrate that ex parte relief was warranted, primarily because FTSS did not show that appropriate circumstances existed — i.e., that Vector was likely to take advantage of an opportunity to conceal or destroy evidence (and thereby render further prosecution of the action fruitless) if it had notice of the order. Id. at 651. B. The instant case. While the appeal of the ex parte order entered in the action brought by FTSS was pending in this court, the plaintiffs in the instant case, as heretofore indicated, filed this suit in Ohio state court. They alleged that the process by which FTSS and the attorney defendants obtained and executed the search order was tortious, and that it included the taking of confidential" }, { "docid": "6177136", "title": "", "text": "(the “Copyright Act”) and the Lanham Act, 15 U.S.C. § 1051 et seq. It also alleged four state-law claims: unfair competition, conversion, tortious interference with advantageous business relations and a constructive trust. Gamma alleged that Ean-Chea was behind a massive pirating scheme, and requested millions of dollars in relief. Together with the complaint, Gamma submitted a one page document entitled “Motion For Seizure and Impoundment.” By this motion, Gamma sought an ex parte order allowing it “to seize and impound any and all video tapes which are owned or under the control of the defendants and which are Cambodian language versions of the TVB programs, produced under the authority of plaintiff Gamma Audio & Video, Inc. including any and all such videotapes on the premises of the respective stores of defendants.” Simultaneously; Gamma moved for a temporary restraining order and preliminary injunction enjoining Ean-Chea from further acts of infringement and from disposing any potentially “incriminating” materials such as business records and advertising materials. This motion also asked that Ean-Chea deliver up ... to be impounded during the pendency of this action, all copies of the Gamma TVB Programs and all negatives, prints, matrices, master tapes, all business records relating to the sale and/or rental of video tapes of the Gamma TVB Programs, and all other materials including video recorders, automatic video tape rewinders, and television monitors (collectively “machines”) used in the making of such infringing copies and all advertising and materials used in the promotion thereof. Gamma was authorized to visit Ean-Chea’s video stores, in the company of a U.S. Marshal or Deputy Sheriff, “for the purposes of inspection, inventorying, and photographing materials alleged to infringe,” and to carry out the impoundment. District Judge Mazzone granted the motion for seizure and impoundment and a T.R.O. and ordered Gamma to post a bond in the amount of $2,500. On June 24, 1991, District Judge Zobel, to whom the case was assigned, heard argument on Gamma’s motion for a preliminary injunction and granted it. In the meantime, on June 14, the individual plaintiffs and their attorneys, accompanied by a local deputy sheriff," }, { "docid": "1950075", "title": "", "text": "to seize videocassettes which infringe the copyrights of the films identified above and also authorization to seize any videocassette which infringes any other copyright held by the plaintiffs. Plaintiffs do not explain how the seizure would be effected and, in particular, how infringing tapes will be identified during the execution of the seizure order. DISCUSSION Impoundment Under the copyright laws, a copyright owner may seek to impound infringing material. See 17 U.S.C. § 503(a). Moreover, the impoundment may in appropriate circumstances occur at the commencement of an action for copyright infringement. See, e.g., Wallace Berrie & Co. v. Custom Styled Toys, CV 82-1820, 1982 WL 1288 (E.D.N.Y. Aug. 16, 1982), reprinted in Copyright Law Reports, ¶ 25,492 (CCH 1981-83). Congress explicitly provided for the availability of impoundment in section 503(a) of the Copyright Act of 1976, which states: At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies ... claimed tó have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies ... may be reproduced. 17 U.S.C. § 503(a). Section 503(a) provides for impoundment prior to a final determination that the defendant has infringed a plaintiffs copyright since the statute specifically states that copies that are “claimed to have been” illicitly produced or used are subject to impoundment. See generally Renard, Raoul Anthony, Comment, PreTrial Remedies in Infringement Actions: The Copyright Holder’s Impound of Flesh, 17 Santa Clara L.Rev. 885, 892-95 (1977) (discussing change in provisions of Copyright Act of 1976 from the provisions of the Copyright Act of 1909). However, when providing for this type of preliminary relief, Congress implicitly recognized that preliminary impoundment could infringe a defendant’s rights under the United States Constitution and provided for safeguards by leaving the question of when impoundment is appropriate and the manner of the impounding to the discretion of the Court. WPOW, Inc. v. MRLJ Enters., 584 F.Supp. 132, 134-35 (D.D.C.1984)." }, { "docid": "2154817", "title": "", "text": "72; Moore, 604 F.2d at 1232. It therefore cannot protect one who is infringing Producers’ Section 106(4) rights by the public performance of the copyrighted work. Ill We therefore conclude that Aveco, by renting its rooms to members of the general public in which they may view performances of Producers’ copyrighted video cassettes, obtained from any source, has authorized public performances of those cassettes. This is a violation of Producers’ Section 106 rights and is appropriately enjoined. We therefore will affirm the order of the district court. . The district court \"permanently enjoined [Defendants] from performing or authorizing others to perform copyrighted motion pictures owned by the Plaintiffs at any place open to the public which is owned or operated by the Defendants without authority or permission of the Plaintiffs.” . Section 106 states: Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or. lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. 17 U.S.C. § 106. . Aveco authorizes the performances that occur in the viewing rooms no less when the copyrighted video cassette is obtained from some other source. Aveco encourages the public to make use of its facilities for the purpose of viewing such tapes and makes available its rooms and equipment to customers who bring cassettes with them. By thus knowingly promoting and facilitating public performances of Producers’ works. Aveco authorizes those performances even when it is not the source of" }, { "docid": "1950093", "title": "", "text": "is likely to be found. See Garrison, 480 U.S. at 84, 107 S.Ct. at 1016; In re Impounded Case (Law Firm), 840 F.2d 196, 200 (3d Cir.1988). The requested order in the present cases is too broad in two respects. First, the requested order permits the plaintiffs not only to seize infringing videocassettes and the machines used to produce them at the defendants’ places of business but also to seize such materials at any location where defendants or their agents may be found within the Eastern District of New York. Plaintiffs have provided no justification for this roving warrant. Second, plaintiffs request an order to seize any videocassette which infringes any copyright held by one of the plaintiffs, which would effectively avoid a restriction limiting plaintiffs’ authorized seizure to infringing videocassettes of the six films in each case for which plaintiffs have provided copyright certificates. Such an order would abrogate the requirement that plaintiffs make a showing of the merits of their underlying claim of infringement and that the defendants possess infringing tapes of the films for which plaintiffs hold the copyright. Finally, plaintiffs have not stated with sufficient particularity how infringing videocassettes will be distinguished from legitimate ones. Although plaintiffs describe in general how an unauthorized videocassette may be distinguished from an authorized one, they have not stated that all of the distinguishing markings of an authorized videocassette are present on the authorized videocassettes of films at issue here. Moreover, the criteria to be applied by the U.S. Marshal are in some cases extraordinarily subjective and, in effect, place the decision to seize or not in the hands of plaintiffs’ expert rather than the U.S. Marshal. While plaintiffs state that “some of the distributing companies manufacture the cassette cartridge containing the tape” with a heat stamp, see Corrigan Aff. ¶ 5(B) (emphasis added); Investigator Aff. ¶3, plaintiffs nowhere claim that the heat stamp is present on all authorized videocassettes of the films at issue in these two actions. Order Sealing File Plaintiffs’ request to seal the court files in these two actions until defendants have notice of this action" }, { "docid": "1950071", "title": "", "text": "are corporations that produce and distribute motion pictures and are coordinating their efforts against film piracy. The defendant in the first action is a person identified by name in the sealed affidavits who allegedly owns and operates a retail video business located in Flushing, New York. The defendant in the second action is another person also identified in the sealed affidavits who allegedly owns and operates a retail video business located in Astoria, New York. Both sets of plaintiffs claim that defendants do not and did not at any relevant time have a license agreement with plaintiffs authorizing the duplication for sale or rental of any motion picture. Kaplan Aff. ¶ 6; Corrigan Aff. ¶ 9. In the first action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Honey, I Blew Up the Baby, The Last of the Mohicans, A League of Their Own, Mo’ Money, Sneakers, and South Central. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for each of these motion pictures. Corrigan Aff. Ex. A. In the second action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Diggstoum, Housesitter, The Last of the Mohicans, A League of Their Own, Patriot Games, and Unlawful Entry. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for each of these motion pictures. Corrigan Aff. Ex. A. In both actions the plaintiffs claim that the respective defendants have infringed their copyrights by reproducing video copies of the respective six films and renting and/or selling these videos. The plaintiffs in each case provide an affidavit of an investigator who is employed by the Anti-Piracy Office of the Motion Picture Association of America, Inc. The investigator, who has been trained to distinguish between authorized and unauthorized videocassettes of the films produced and released by the plaintiffs, states that an unauthorized tape of motion pictures has one or more of the following characteristics: (1) the playing quality of an unauthorized tape may be" }, { "docid": "1950072", "title": "", "text": "each of these motion pictures. Corrigan Aff. Ex. A. In the second action, the plaintiffs claim that they own the copyright to the following six motion pictures, among others: Diggstoum, Housesitter, The Last of the Mohicans, A League of Their Own, Patriot Games, and Unlawful Entry. As part of their current applications, plaintiffs have submitted copies of the certificates of copyright registration for each of these motion pictures. Corrigan Aff. Ex. A. In both actions the plaintiffs claim that the respective defendants have infringed their copyrights by reproducing video copies of the respective six films and renting and/or selling these videos. The plaintiffs in each case provide an affidavit of an investigator who is employed by the Anti-Piracy Office of the Motion Picture Association of America, Inc. The investigator, who has been trained to distinguish between authorized and unauthorized videocassettes of the films produced and released by the plaintiffs, states that an unauthorized tape of motion pictures has one or more of the following characteristics: (1) the playing quality of an unauthorized tape may be inferior to authorized videocassettes in that when viewed the image, sound and color projections are “less clear” than the image, sound and color of an authorized tape; (2) an unauthorized tape may not bear a distinctive “heat stamp,” which is a distinc tive molding imprinted on the plastic cassettes by “some of the major film companies”; (3) the packaging of an unauthorized tape may not be “professional” and may not contain promotional labels, “distinctive” art work or trademarks of the respective film companies. Investigator Aff. ¶¶2, 3. As noted, plaintiffs offer the U.S. Marshal the assistance of their experts in identifying the infringing tapes to be seized. In both cases, the investigator states that during a specified period of time he rented a total of six videoeassettes from each defendant and that all six were unauthorized copies. The six films rented by the investigator in each case are the films for which the plaintiffs hold the copyright identified above in each case. The investigator determined that the films are unauthorized either because they were not" } ]

[ { "docid": "22593071", "title": "", "text": "May 1976, several months after the statute of limitations had run. The crucial question, therefore, is whether “within the period provided by law for commencing the action against him” defendant (1) . received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. We believe that the requirements of the Rule were met. Although on its face the phrase, “within the period provided by law for commencing the action against him,” seems to mean the applicable statute of limitations period, such a literal interpretation is unjustified in jurisdictions where timely service of process can be effected after the statute of limitations has run. In those jurisdictions, even an accurately named defendant may not receive actual notice of the action against him prior to the running of the statute of limitations. Yet there is no doubt that the action against him is timely commenced. There is no reason why a misnamed defendant is entitled to earlier notice than he would have received had the complaint named him correctly. Calling the problem raised here a “curious but minor difficulty of interpretation . . over the language of the rule referring to the limitations period,” Professor (now Justice) Benjamin Kaplan, reporter for the Advisory Committee on Civil Rules, implicitly criticized a district court decision refusing relation back on facts somewhat similar to these. Kaplan supra at 410 & n.204. Professor Kaplan noted the anomaly of dismissing an action, which “against the original defendant . would be considered timely brought despite the delayed service.” Id. at 410 n.204. We agree that such a result is anomalous and that it is not required by Rule 15(c). This case presents an excellent situation for specific application of the Rule’s general admonition that “leave [to amend] shall be freely given when justice so requires.” Fed.R.Civ.Proc. 15(a). If plaintiff’s action would have been timely had her complaint correctly named Vijay" } ]

[ { "docid": "18736694", "title": "", "text": "factors upon which “relation back” of an amended pleading under Rule 15(c) depends: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it, and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. 106 S.Ct. at 2384. All four factors must be satisfied before relation back will apply. Id. Applying the Schiavone test to Bell’s case, the district court noted that the proper party defendant, the Administrator, was not named and that the complaint was therefore subject to dismissal. Furthermore, because Bell did not serve process upon any defendant until well after the thirty-day limitations period had expired, the district court held that the Administrator could not have known within the prescribed limitations period that, but for Bell’s mistake in naming the proper defendant, the federal action would have been brought against him. Thus, Bell failed to comply with the second, third and fourth factors of the Schiavone test, and the complaint could not be amended to relate back to the original filing date under Rule 15(c). Bell argues that he satisfied Schiavone’s notice requirements by virtue of his administrative hearings before the MSPB, of which the Administrator had knowledge. We are sorry, but this argument will not do. We have recently made clear the law in this circuit: Bell’s involvement in administrative litigation cannot be construed as notice of a subsequent federal lawsuit. Gonzales v. Secretary of Air Force, 824 F.2d 392 (5th Cir.1987). Furthermore, because Bell failed to serve notice on any party until after the thirty-day limitations period had expired, knowledge of his federal lawsuit cannot be imputed to the Administrator from service on the Veterans Administration and the United States Attorney. Id. We hold, therefore, that, under Schiavone, the district court correctly dismissed Bell’s complaint and disallowed an" }, { "docid": "19019334", "title": "", "text": "complaint was forwarded by Arrow to the United States Marshal in Madison, Wisconsin for service on Sentry through the Wisconsin Insurance Commissioner. By letter dated August 25, 1980, the United States Marshal’s service in Portland, Maine informed Arrow that the Wisconsin Insurance Commissioner had refused to accept service because Sentry Insurance Company no longer existed. The letter indicated that the correct name was either “Sentry Insurance, A Mutual Company,” or “Sentry Indemnity.” (Affidavits of John McCarthy, Esquire, dated January 28, 1982, July 13, 1982). On October 10, 1980 Arrow filed an amended complaint changing the previous designation of Sentry to “Sentry Insurance, A Mutual Company.” Service was effected on October 28, 1980 through the Maine Superintendent of Insurance. Arrow does not deny that actual service was effected after the one-year statute of limitations had run. Instead, Arrow argues that under Rule 15(c) of the Federal Rules of Civil Procedure the amended complaint correctly naming Sentry should relate back to August 5, 1980, the date the original complaint was filed. Rule 15(c) permits an amendment adding or changing a party to relate back to the date of the original pleading, provided that: within the period provided by law for commencing the action.., the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. F.R.Civ.P. 15(c). Relying on the Second Circuit Court of Appeals decision in Ingram v. Kumar, 585 F.2d 566 (2d Cir.1978), cert. denied 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), Arrow argues that service of the amended complaint on Sentry was sufficient notice under Rule 15(c). In Ingram, the plaintiff had filed her complaint within the applicable limitations period but had named and served the wrong defendant. Upon discovering the error, plaintiff amended her complaint and served the correct defendant three months beyond the limitations period. It was" }, { "docid": "4189770", "title": "", "text": "was transferred to INA Corporation, which became her formal employer of record. . 42 U.S.C. § 2000e-5(f)(l) provides that “within ninety days after the giving of such notice [of right to sue] a civil action may be brought against the respondent named in the charge by the person claiming to be aggrieved.” Compliance with the 90 day right to sue period is a jurisdictional prerequisite and failure to comply with this time limitation will result in dismissal of the action. Archie v. Chicago Truck Drivers, Inc., 585 F.2d 210, 215 (7th Cir. 1978). . Fed.R.Civ.P. 15(c) provides in pertinent part: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . Plaintiff has made the argument that its designation of the “Insurance Company of North America Corporation” as defendant in her original complaint was a mere “misnomer” and, therefore, it is not required to satisfy this portion of Rule 15(c). Although I agree that plaintiffs amended complaint corrected a misnomer, the weight of authority is that in a misnomer case, a plaintiff must still satisfy the requirements of the second sentence of Rule 15(c). See Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), and cases cited therein; Advisory Committee Notes to the 1966 Amendments to Rule 15(c): “Rule 15(c) is amplified to state more" }, { "docid": "21567122", "title": "", "text": "thirty day limitation of 42 U.S.C. § 2000e-16(c) is a “jurisdictional fact” and the district court should have dismissed Brown’s complaint on jurisdictional grounds. Eastland v. Tennessee Valley Authority, 553 F.2d 364, 369-70 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977). The only way the Court could have retained jurisdiction was if the amended complaint which named the proper defendant could relate back to the original filing date under Rule 15(c), Fed.R.Civ.P. In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) the United States Supreme Court set forth four factors upon which the relation back of an amended pleading under Rule 15(c) depends: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it, and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Id. 106 S.Ct. at 2384. In order for an amended pleading to relate back all four factors must be satisfied. Id. This Court recently applied the Schia-vone factors in Gonzales v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987) (appeal filed 11/16/87). In Gonzales, the Plaintiff filed suit against the Department of the Air Force within the statutory period but failed to serve process on the Department or the United States Attorney until the time period had expired. In addition, the Secretary of the Air Force was not named as a defendant until after the expiration of the thirty-day statutory period. This Court held Gonzales’ amended complaint did not relate back because he gave no notice of his federal claim to any party within the time period proscribed by the statute. Like the Plaintiff in Gonzales, Brown has complied with the first factor of the Schiavone test. However he has failed to satisfy the second, third" }, { "docid": "4189771", "title": "", "text": "to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . Plaintiff has made the argument that its designation of the “Insurance Company of North America Corporation” as defendant in her original complaint was a mere “misnomer” and, therefore, it is not required to satisfy this portion of Rule 15(c). Although I agree that plaintiffs amended complaint corrected a misnomer, the weight of authority is that in a misnomer case, a plaintiff must still satisfy the requirements of the second sentence of Rule 15(c). See Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), and cases cited therein; Advisory Committee Notes to the 1966 Amendments to Rule 15(c): “Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a claim is asserted (including an amendment to correct a misnomer or misdescription of a defendant) shall ‘relate back’ to the date of the original pleading.” (Emphasis added). . An action is “commenced” in federal court “by filing a complaint with the court.” Fed.R. Civ.P. 3. . 42 U.S.C. § 2000e-5(e) provides that a timely charge of discrimination must be made within 180 days after the alleged unlawful employment discrimination occurred. The statute further provides that in the event a plaintiff proceeds first before a state or local agency (which plaintiff did here by filing a charge of discrimination with the Pennsylvania Human Relations Commission), the charge, to be timely, must be filed within 300 days from the alleged act of discrimination. As with the 90 day period in which to commence suit, this provision is a jurisdictional prerequisite to the maintenance of an action in the district court. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39" }, { "docid": "2238110", "title": "", "text": "if the foregoing provision is satisfied and, within the period provided by law for commencing an action against him, the parly to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (Emphasis added.) Defendants, noting the maxim that a waiver of sovereign immunity under the Federal Tort Claims Act is to be strictly construed, contend that the amendment cannot relate back to the time the complaint was filed because the first time the United States received notice concerning the institution of a lawsuit occurred on May 26, 1981 (when the complaint was served on the agencies) — beyond the six-month statute-of-limitations period. If we were writing on a “blank slate,” we would reject such an approach, finding instead that “under Rule 15(c), the period within which the ‘party to be brought in’ must receive notice of the action includes the reasonable time allowed under the Federal Rules for service of process. We think this interpretation is permissible and desirable and carries out the beneficent purpose of the 1966 amendments.” Ingram v. Kumar, 585 F.2d 566, 571 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). As the Second Circuit recently explained: Although on its face the phrase “within the period provided by law for commencing the action against him,” seems to mean the applicable statute of limitations period, such a literal interpretation is unjustified in jurisdictions where timely service of process can be effected after the statute of limitations has run. In those jurisdictions, even an accurately named defendant may not receive actual notice of the action against him prior to the running of the statute of limitations. Yet there is no doubt that the action against him is timely. There is no reason why a misnamed defendant is entitled to earlier notice than he would have" }, { "docid": "17364803", "title": "", "text": "dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. 106 S.Ct. at 2384. See also Gonzales, 824 F.2d at 395. As in the above cases, the second and fourth factors are most important here. In Schiavone, plaintiffs timely sued Fortune Magazine for libel within New Jersey’s one-year statute of limitations. “Fortune,” however, was only a trademark and internal division of Time, Incorporated. When the plaintiffs attempted to serve process on Time’s registered agent, the agent refused process because Time had not been named as a defendant. The plaintiffs amended their complaint to name Time as a defendant and thereafter serve process on it after the one-year statute of limitations had expired. The Supreme Court affirmed the district court’s dismissal of the plaintiffs’ complaint because neither Fortune nor Time received notice of the filing until after the limitations period had run. Therefore, the amended complaint did not “relate back” under Rule 15(c). In Gonzales, the plaintiff received notice of a final agency decision on March 15, 1985, and thereafter timely filed a complaint against the Department of the Air Force within the thirty-day period of § 2000e-16(c) on April 12, 1985. Gonzales served process on the Department and the U.S. Attorney after the thirty-day period had expired. Gonzales amended his complaint on May 21, 1986, naming the Secretary of the Air Force as the proper defendant. He served process on the Secretary on June 2, 1986. Relying on Sckiavone, we affirmed the district court’s dismissal of the plaintiffs complaint because neither the Department, the Secretary, or the United States Attorney received notice of the suit within the thirty-day period mandated by §" }, { "docid": "1057212", "title": "", "text": "should have been granted. Allen’s proposed amended complaint faces a fundamental problem: she seeks to add the United States as a party after the running of the statute of limitations on July 20, 1982. Allen contends, however, that her amended complaint should relate back to July 12, 1982 when her original complaint was filed. Rule 15(c) allows the filing date of an amended complaint naming a new party to relate back to the filing date of the original complaint if the claim arises out of the same conduct, transaction, or occurrence as the original complaint, and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Allen’s amended complaint obviously arises out of the same occurrence, and the United States reasonably should know that it, rather than its agencies, is the proper defendant in Federal Tort Claims Act suits. The question is therefore whether the United States “within the period provided by law for commencing the action ... received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits.” The second paragraph of Rule 15(c) specifically addresses mistakes in suing government officers and entities: “The delivery or mailing of process to the United States Attorney, or his desig-nee, or the Attorney General of the United States, or an agency or officer who would be a proper defendant if named, satisfies the requirements above] with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.” Allen has not satisfied these requirements. The United States Attorney and the Attorney General were not served before the statute of limitations ran. The Veterans Administration, even if arguably served, would not have been" }, { "docid": "802632", "title": "", "text": "pursuant to 28 U.S.C. § 1406(a). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir. 1978). Defendants also urge that the action is not timely because the original complaint did not properly name defendants Krebs and Krauss and the amended complaint, filed after the statute had expired, should not relate back to the original pleading. Under Rule 15(c) of the Federal Rules of Civil Procedure an amendment relates back to the date of the original pleading “whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” This requirement is clearly met in the instant case. When, however, the amendment seeks to change a party against whom a claim is asserted, it will relate back only if two additional requirements are met: An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Although some courts have held that the correction of a misnomer need only meet the same transaction requirement of Rule 15(c), the Second Circuit has held that all amendments affecting the designation of parties must satisfy the second part of Rule 15(c). Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In this case, neither Krebs nor Krauss was actually served until two months after the statute of limitations had expired. However, the Second Circuit has held that in jurisdictions in which timely service of" }, { "docid": "23159881", "title": "", "text": "original complaint was served upon the proper party. The trial court correctly found then that the amended complaint merely corrected a misnomer and met all the requirements of Rule 15(c). It is clear that the claim asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth in the original pleading thereby satisfying the requirements of the first sentence of Rule 15(c). As to the two requirements of the second sentence, appellant argues that he did not receive notice of the institution of the action within the period provided by law for commencement of the suit. We have already stated that an action under § 2000e must be brought within 30 days of receipt of the EEOC letter, but that filing the lawsuit commenced the action and therefore tolled the 30-day time limit. Thus, service after the 30-day period was “within the period provided by law for commencing the action” because the time limit had been tolled. Although service upon a properly named plaintiff is formal notice, the Notes of the Advisory Committee make clear that “the notice need not be formal.” In our case, although the original complaint did not correctly name the defendant, it did identify the defendant. Duffy’s Inc. appeared in the caption and the mistake was manifest. When the complaint was received Duffy’s Inc. knew or should have known that it was the object of the suit. Therefore, it cannot be said that there is any lack of notice. Accordingly, we conclude that the majority result is not only unjust, it is out of tune with the philosophy as well as the terms of Rule 15(c) and it is not in accord with this court’s prior decisions. . Rule 15(c) of the Federal Rules of Civil Procedure states in relevant part: (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to tbe date of the original pleading. An amendment changing the party" }, { "docid": "4987959", "title": "", "text": "has held that all amendments affecting the designation of parties must satisfy the criteria of Rule 15(c). Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). Defendant was properly named and served within twenty days of the running of the statute of limitations. The Second Circuit has explicitly held that “the period within which ‘the party to be brought in’ must receive notice of the action includes the reasonable time allowed under the federal rules for service of process.” Ingram v. Kumar, id., 585 F.2d at 572. Twenty days after the statute of limitations has expired is well within the reasonable limits accepted by other courts. Calabretta v. National Airlines, 528 F.Supp. 32 (S.D.N.Y.1981) (2-3 weeks); Davis v. Krauss, 478 F.Supp. 823 (E.D.N.Y.1979) (2 months reasonable). Defendants have also not shown any serious prejudice as a result of the failure to name them specifically twenty days earlier. Lastly, with respect to the knowledge requirement of Fed.R.Civ.P. 15(c), defendant argues that they had no knowledge of this litigation until the amended complaint was filed against them. The language of the rule does not require actual knowledge for an amendment to relate back: the question is whether the party “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Fed.R.Civ.P. 15(c)(2). Whether Deloitte Haskins and Sells “should have known that they were included in the complaint” is an issue for trial, since it involves a disputed question material to the motion. Plaintiffs note that Deloitte Haskins and Sells was participating in the Louisiana bankruptcy proceedings, and that it is disingenuous for defendant to argue that they had no idea about the litigation. Drawing all reasonable inferences favorable to the plaintiff, the defendant has not met their burden of showing an absence of issues for trial. See generally Cali v. Eastern Airlines, Inc., 442 F.2d 65 (2d Cir.1971). Class Action Certification Plaintiffs also move for class certification. For the following reasons, this motion is denied. First," }, { "docid": "19019335", "title": "", "text": "or changing a party to relate back to the date of the original pleading, provided that: within the period provided by law for commencing the action.., the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. F.R.Civ.P. 15(c). Relying on the Second Circuit Court of Appeals decision in Ingram v. Kumar, 585 F.2d 566 (2d Cir.1978), cert. denied 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), Arrow argues that service of the amended complaint on Sentry was sufficient notice under Rule 15(c). In Ingram, the plaintiff had filed her complaint within the applicable limitations period but had named and served the wrong defendant. Upon discovering the error, plaintiff amended her complaint and served the correct defendant three months beyond the limitations period. It was undisputed that prior to being served the correct defendant did not have any notice of the suit. Finding that the amended complaint related back, the Ingram court held that “the period within which ‘the party to be brought in’ must receive notice of the action includes the reasonable time allowed under the federal rules for service of process.” Id. at 572. The court reasoned that because an action can be timely commenced against a correctly identified defendant even though the defendant was not served until after the limitations period had run, there is no reason why a misnamed defendant is entitled to earlier notice than he would have received had the complaint named him correctly. Id. at 571. Sentry contends that by its express terms the notice requirement of Rule 15(c) was satisfied only if Sentry received actual notice of the commencement of the suit by Arrow no later than August 18, 1980, or “one year from the day after the date on which the last of the ... material was supplied . . ..”" }, { "docid": "1853188", "title": "", "text": "on that date, cf. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir.1998) (finding that a claim for wrongful arrest and confinement accrued on the day that plaintiff had knowledge of the events), Plaintiff had until November 11, 1999, to file a complaint against all Defendants named in the first amended complaint. See Carreras-Rosa, 127 F.3d at 175. Plaintiff did not do so. Moving Defendants other than Ruiz-Sárraga contend that Plaintiff could not join them as defendants after the statute of limitations had run because they did not receive timely notice of Plaintiffs original action and they lacked knowledge of Plaintiffs mistake in omitting them from his original complaint, as required by Fed. R.Civ.P. 15(c)(3). Docket Document No. 70. 1.Rule 15(c)(3) After the running of the relevant statute of limitations, Rule 15(c) determines whether a plaintiff may amend a complaint to add a defendant by relating the amended complaint back to the original one. Wilson v. United States, 23 F.3d 559, 562 (1st Cir.1994). Rule 15(c) provides: An amendment of a pleading relates back to the date of the original pleading when: 1. relation back is permitted by the law that provides the statute of limitations applicable to the action, or 2. the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or 3. the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed.R.Civ.P. 15(c). Thus, Rule 15(c) requires that three conditions be met before a plaintiff can add a" }, { "docid": "4987958", "title": "", "text": "New York residents. The facts pertinent to their unique statute of limitations defense are as follows. The original complaint was filed on October 24, 1974 and named Multiponics auditors as a John Doe defendant. Twenty days later, on November 14, 1974, plaintiffs filed an amended complaint nam ing Deloitte, Haskins and Sells specifically as the auditor defendant and promptly served them with process. The amended complaint alleged that Deloitte Haskins and Sells was Multiponics “public accounting firm,” which approved the contents of the offering circular, participated in its preparation and also participated in the solicitation of plaintiffs’ purchases of Multiponics securities. Plaintiffs must satisfy the requirements of Fed.R.Civ.P. 15(c) to determine whether their amended complaint can relate back to the date of the original pleading. The first requirement of the rule is that the amended claim must arise out of the same transaction or occurrence set forth in the original pleading: this requirement is obviously met. Whether a John Doe complaint should be treated as a misnomer or otherwise is irrelevant, since the Second Circuit has held that all amendments affecting the designation of parties must satisfy the criteria of Rule 15(c). Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). Defendant was properly named and served within twenty days of the running of the statute of limitations. The Second Circuit has explicitly held that “the period within which ‘the party to be brought in’ must receive notice of the action includes the reasonable time allowed under the federal rules for service of process.” Ingram v. Kumar, id., 585 F.2d at 572. Twenty days after the statute of limitations has expired is well within the reasonable limits accepted by other courts. Calabretta v. National Airlines, 528 F.Supp. 32 (S.D.N.Y.1981) (2-3 weeks); Davis v. Krauss, 478 F.Supp. 823 (E.D.N.Y.1979) (2 months reasonable). Defendants have also not shown any serious prejudice as a result of the failure to name them specifically twenty days earlier. Lastly, with respect to the knowledge requirement of Fed.R.Civ.P. 15(c), defendant argues that they had no" }, { "docid": "2238111", "title": "", "text": "to be brought in’ must receive notice of the action includes the reasonable time allowed under the Federal Rules for service of process. We think this interpretation is permissible and desirable and carries out the beneficent purpose of the 1966 amendments.” Ingram v. Kumar, 585 F.2d 566, 571 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). As the Second Circuit recently explained: Although on its face the phrase “within the period provided by law for commencing the action against him,” seems to mean the applicable statute of limitations period, such a literal interpretation is unjustified in jurisdictions where timely service of process can be effected after the statute of limitations has run. In those jurisdictions, even an accurately named defendant may not receive actual notice of the action against him prior to the running of the statute of limitations. Yet there is no doubt that the action against him is timely. There is no reason why a misnamed defendant is entitled to earlier notice than he would have recoived had the complaint named him correctly. Ingram v. Kumar, supra, at 571. The anomaly of dismissing an action which “against the original defendant . . . would be considered timely brought despite the delayed service,” Kaplan, “Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I),” 81 Harv.L.Rev. 356, 410 n.204 (1967) is all the greater when, for all practical and legal purposes, the original party and the party to be brought in are identical. In the case at bar, whether the United States or the Department of Justice is named as the defendant, the same person is served, the same party appears in court, and the same entity bears the risk of loss. Although the court in Ingram dealt with a mistake in the name of a private party, no greater burden is imposed under 15(c) because the error concerns the federal government. While prior to the 1966 Amend ments some courts had been more reluctant to relate back amendments in actions against the United States than" }, { "docid": "802633", "title": "", "text": "the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Although some courts have held that the correction of a misnomer need only meet the same transaction requirement of Rule 15(c), the Second Circuit has held that all amendments affecting the designation of parties must satisfy the second part of Rule 15(c). Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In this case, neither Krebs nor Krauss was actually served until two months after the statute of limitations had expired. However, the Second Circuit has held that in jurisdictions in which timely service of process can be effected after the statute of limitations has run, the phrase “within the period provided by law for commencing the action” should be construed to include the reasonable time allowed under the Federal Rules for service of process. Since personal service two months after the statute had run would have been timely, the court finds that defendants Krebs and Krauss received notice “within the period provided by law for commencing the action.” Ingram v. Kumar, 585 F.2d at 571-72. Since defendants have alleged no way in which they were prejudiced by the delay in service, it remains only to consider the knowledge requirement. “Guy Krauss” plainly referred to Jurgen Krauss and therefore defendant Krauss should have known that but for plaintiff’s mistake, the action would have been brought against him. This element is also satisfied with respect to defendant Krebs. Because the incident upon which plaintiff’s claim is based involved both defendants, defendant Krebs should have known that he would have been named as a defendant but for a mistake on plaintiff’s part." }, { "docid": "4189760", "title": "", "text": "letter from the EEOC. But, had INA been properly named in the caption of the complaint, it could not possibly argue that the action was untimely for it is “well-settled that the statute of limitations is not a defense for a party served after the limitations period has expired so long as the action was ‘commenced’ within the relevant period.” Mitchell v. Hendricks, 68 F.R.D. 564, 568 (E.D.Pa.1975) (citing 2 Moore’s Federal Practice ¶ 3.07[4-3-2] (2d ed. 1979)). Thus, if plaintiff’s action would have been timely had her complaint correctly named INA, even though INA received notice after the 90 day period had expired, there is no logical reason why plaintiff’s amended complaint should be considered untimely. As the district court stated in Mitchell v. Hendricks, supra, 68 F.R.D. at 568: “Such a ruling treats the defendant [named in the amended complaint] no differently than the defendant who knows nothing of a lawsuit, ‘commenced’ under applicable procedural rules, until after the limitations period has run, and to whom, nonetheless, the [statute of limitations] defense is of no avail.” See also Ingram v. Kumar, 585 F.2d 566, 571 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); 2 Moore’s Federal Practice ¶ 4.44, at 4-558-4-559 (2d ed. 1979). Professors Wright and Miller have characterized INA’s argument here as “an overly literal reading of the rule,” stating further that “it is difficult to understand how the new defendant will be prejudiced” because “[c]ommon sense, prudence, and efficiency suggest to the reasonable man that he should pursue his initial investigation and prepare his defense ... in such a manner as to collect and preserve evidence regarding all of the foreseeable actions arising from the event.” 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1498, at 509-10 (1971). Certainly, INA has done so here. INA was named and charged by plaintiff in the proceedings before the EEOC, and therefore knew of the prior EEOC investigation. Plaintiff and plaintiff’s counsel met with attorneys and representatives of both INA and INA Corporation and advised them of" }, { "docid": "18718041", "title": "", "text": "view of Lofton’s failure originally to file a complaint against the proper defendant within the thirty-day statutory period, his claim must be barred unless his December 16, 1983 “amended complaint” substituting the proper party relates back to the date his original complaint was filed. Rule 15(c), which governs the relation back of amendments to pleadings, states: An amendment changing the party against whom a claim is asserted relates back if ..., within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Fed.R.Civ.P. 15(c). This circuit adheres to a literal interpretation of the Rule 15(c) notice requirement. For example, in Cooper, 740 F.2d at 717, we found that Cooper’s failure to notify the substitute defendant of her action until after the statutory period had run precluded the favorable application of Rule 15(e). Similarly, in Williams v. United States, 711 F.2d 893, 898 (9th Cir.1983), we upheld the district court’s denial of the plaintiff’s Rule 15(c) motion to name the United States as a defendant because the United States had not received notice of the action until one day after the statute of limitations had run. Thus Lofton’s attempt to substitute the Secretary of Health and Human Services is ineffective because the Secretary did not receive notice of Lofton’s action until several months after the thirty-day statutory period had run. Lofton’s December 16, 1983 complaint thus cannot relate back and the district court properly dismissed the action for lack of jurisdiction. Lofton could have preserved his Title VII action by filing the amended complaint designating the proper party if he had given notice to the United States before July 17, 1982. He failed to do so. Therefore, Lof-ton’s December 16, 1983 amended complaint cannot relate back to date of filing his" }, { "docid": "13460227", "title": "", "text": "receiving the required notice. Thus, the issue to be decided here is whether RCCL A/S received notice sufficient to permit its substitution as a party defendant. II. DISCUSSION Fed.R.Civ.P. 15(c) is the only vehicle through which a plaintiff may amend his complaint, after a statute of limitation period has run, to accurately name a defendant who was not correctly named in the pleading before the limitation period had run. Craig v. United States, 413 F.2d 854, 856 (9th Cir.1969), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969) (Craig I). Under Rule 15(c), an amended complaint changing the party against whom the claim is asserted will relate back to the original complaint where: (1) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading; (2) within the period provided by law for commencing the action against him, the party to be brought in by amendment has received such ‘notice of the institution of the action’ that he will not be prejudiced in maintaining his defense on the merits; and (3) within the period provided by law for commencing the action against him, the party to be brought in knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Id. at page 857. While it is the second condition that provided the district court a basis for its denial of the motion to amend, the first and third conditions must also be met in order for an amended complaint to relate back to the date of the original pleading. Id. On review, our task is to determine whether the decision of the district court constituted an abuse of discretion. Friends of the Earth v. Coleman, 518 F.2d 323 (9th Cir.1975). In the instant matter, the district court determined that before a new party could be brought in under an amended complaint, actual notice of the filing of the lawsuit— accomplished by service of process — must have been effected on the originally" }, { "docid": "22991761", "title": "", "text": "related to the requirement that the notice be such that the party to be brought in will not be prejudiced in defending on the merits. Fed.R.Civ.P. 15(c)(1). When appellee’s agent, Chief Tompson, and his attorneys learned of the suit against the sheriff’s office, they should have taken steps to investigate the claim, including collecting and preserving evidence against any foreseeable eventuality. Therefore, the appellee cannot claim that he has been prejudiced through the loss of evidence or by undue surprise. Cf. Ratcliffe v. Insurance Company of North America, 482 F.Supp. 759, 763 (E.D. Pa.1980) (where attorneys of party to be brought in discussed claim with plaintiff and made some investigation, the party to be brought in will not be prejudiced in defending the action). We hold that the appellee had sufficient notice of the institution of the action to satisfy the second part of Rule 15(c)’s test for relation back. We note that although the complaint against the sheriff’s office was filed within one year of accrual of the claim, the complaint was not served upon Chief Tompson until six days after the one-year period had expired. Arguably, the appellee, his deputy and attorneys could not have received notice of the institution action “within the period provided by law for commencing the action against him,” as required by Rule 15(c). This time provision, however, has not been given a literal construction. In Ingram v. Kumar, 585 F.2d 566, 571-72 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), the court held: [Tjhat under Rule 15(c) the period within which ‘the party to be brought in’ must receive notice of the action includes the reasonable time allowed under the federal rules for service of process. (footnote omitted). Unquestionably, service of process was made upon Chief Tompson within a reasonable time. He in turn promptly transmitted the complaint to appellee’s attorneys. Accordingly, we believe that the appellee did receive notice within the time frame provided in Rule 15(c). Likewise, the third requirement of Rule 15(c) has been satisfied. We find that the appellee “knew or should" } ]

[ { "docid": "7028553", "title": "", "text": "383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).” Lokos, supra, at 577. The Supreme Court in Pate considered the issue of whether a defendant was deprived of due process of law under the Fourteenth Amendment by the trial court’s rejection of his incompetence argument and resultant refusal to hold a competency hearing. The Court held that evidence introduced below on the defendant’s behalf entitled him to a hearing on the issue of competence. Citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed.2d 835 (1956), for the proposition that conviction of an accused while he is legally incompetent violates due process, the Court concluded that the defendant’s right to a competency hearing was constitutionally protected and that deprivation of that right resulted in denying the defendant a fair trial. As this court correctly concluded in its previous opinion, the ease presently at issue raises the same question. Upon remand, the Middle District of Alabama considered six issues, but not the claim of procedural due process deprivation under Pate as required by this court’s previous order. We therefore remand to said district court with instructions to hold a hearing to determine whether, based on the record of the trial court, there were reasonable grounds presented in 1963 to entitle the appellant to a full sanity hearing. The standard of review is that delineated in Pate, which has been described by this court as follows: whether the record reveals “evidence at trial raising a bona fide doubt of competence.” Nathaniel v. Estelle, 493 F.2d 794, 797 (5th Cir. 1974). Indeed, this standard is properly reflected in the Alabama statute, which requires “reasonable grounds to doubt [the accused’s] sanity.” Brinks v. Alabama, 465 F.2d 446, 449 (5th Cir. 1972) (emphasis and brackets in original). If such a doubt was raised, the district court must determine whether the petitioner was afforded a constitutionally adequate competency hearing by the Alabama trial court, or whether the trial judge’s failure to provide a psychiatric examination pursuant to Alabama Code, Title 15, §§ 425-6, violated the clear constitutional mandate of due process of" } ]

[ { "docid": "14118609", "title": "", "text": "PER CURIAM: The sole issue meriting discussion in this habeas case is whether the petitioner’s mental competency to plead was properly resolved in accordance with the standards of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In 1972, Alva E. Curry, represented by court-appointed counsel, pled guilty to rape in Texas state court and received a sentence of 5-15 years. Before accepting the plea, the court advised Curry of the consequences of his action and asked several questions directed toward ascertaining whether the plea was freely and voluntarily given. The state transcript reveals that after entering his plea, Curry was asked by the court if he had anything to say as to why sentence should not be imposed. His response was the one word, “Insanity.” At this point, Curry’s counsel explained to the judge that although his client was in need of medical treatment, he believed him to be presently sane. The state then introduced letters from two psychiatrists who had examined and found petitioner competent to stand trial and legally sane at the time of the rape. Based on this evidence, the judge allowed the guilty plea to stand. There was no direct appeal. Curry’s pro se habeas petition in the district court generally alleged, inter alia, that his plea was involuntary, though not specifically focusing on the competency question. In denying the petition without a hearing, the district court squarely addressed the competency issue and held that petitioner had sufficiently exhausted state remedies on this point. The court then refused to find petitioner’s plea involuntary based on the fact that Curry had been represented by reasonably effective counsel at the time of the sentencing. See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). We agree with the district court’s conclusion, but for a different reason. Although the voluntariness of the plea issue is often intertwined with the question of whether defendant was represented by competent counsel, there is an independent duty imposed upon the court to determine if an accused possesses the mental capacity to enter a knowing and intelligent plea. We" }, { "docid": "13526572", "title": "", "text": "illness, no documentation that his claimed suicide attempts were actually designed to take his life, nor any other evidence from which this court may glean that he was incompetent to stand trial. Even assuming that Johnson was in fact suffering from a mental illness or disability at the time of trial, on the present facts we are unable to conclude that this mental deficiency precluded petitioner’s meaningful participation in his defense. Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.1979). Nor can we hold that the present facts give rise to an inference that the trial court should have conducted a hearing, sua sponte, to determine Johnson's competence to stand trial. Generally, “three factors are to be considered in determining whether a Pate violation has occurred: any history of irrational behavior, defendant’s trial demeanor, and prior medical opinion.” Zapata, supra, at 1020 n. 1. Because Johnson’s allegations do not suggest that the trial judge was aware of any prior medical opinion or that his demeanor at trial would suggest that he was incompetent, we need only consider whether Johnson’s pretrial behavior should have alerted the trial judge to the possibility that he was incompetent to stand trial. Although Johnson contends that he twice attempted suicide, his allegations do not establish that the trial judge either knew of these attempts, or was not justified in dis counting their significance. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 48 L.Ed.2d 103 (1975). Nor does a seemingly irrational crime, without more, place a trial court on constructive notice that a defendant is incompetent to stand trial. See Fitch v. Estelle, 587 F.2d 773, 777 (5th Cir.1979). We turn now to Johnson’s claim of ineffective assistance of counsel. B. Ineffective Assistance of Counsel It is the essence of legal training that there is no one correct approach to a given problem and that the approach taken must be responsive to both the issues of the ease and the audience evaluating the argument. It is therefore extremely difficult, even with the aid of hindsight and reflection, to determine the arguments that would be" }, { "docid": "20295570", "title": "", "text": "second sentence (most notably Bozi’s death) into account. Since we see no basis on which to question that finding, we hold that the district court was not required to consider the prior incarceration. Cf. U.S.S.G. § 5G1.3 (prior offense must be for conduct that increases sentence for current offense to warrant consideration). We likewise hold that pre-indictment delay was not a relevant sentencing factor. V For the foregoing reasons, the district court’s judgment is AFFIRMED. . Fitch also appeals the district court's order denying his pretrial motion to dismiss the indictment based on Sixth Amendment speedy trial grounds. We affirm the district court’s order because Fitch did not satisfy his burden of showing that he faced the \"actual restraints imposed by arrest and holding to answer\" the criminal charges at issue in this case prior to his June 2004 indictment. See Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). . Fitch objected to portions of the PSR, but did not request a hearing pursuant to Federal Rule of Criminal Procedure 32(i)(2) (\"The court may permit the parties to introduce evidence on the objections [to the PSR].”). In any event, we do not rely on any of the disputed portions of the PSR. . The record does not reflect where either Bozi or Fitch lived before moving into the mobile home. . Including The Modem Identity Changer; How to Make a Silencer for a .45; The Paper Trip I, II, and III — The Master Guide to New Identity; More Workbench Silencers; ID by Mail; High-Tech Harassment; Pipe and Fire Bomb Designs; The Revenge Encyclopedia; 100 Ways to Disappear and Live Free; Make Em Talk! Principles of Military Interrogation; Hit Man, A Technical Manual for Independent Contractors; Improvised Explosives, How to Make Your Own; Improvised Radio Detonation Techniques; The Death Dealer’s Manual; Deadly Brew, Advanced Improvised Explosives; Dragon’s Touch, Weaknesses of Human Anatomy; How To Malee a Silencer for a .22; Methods of Disguise; Acquiring New ID; New ID in America; and Kill Without Joy! The Complete How to Kill Book. . Fitch was" }, { "docid": "20295569", "title": "", "text": "atypical and extreme as murder. See Booker, 543 U.S. at 245, 125 S.Ct. 738 (sentencing courts still required to consider Guidelines). We note, moreover, that the increase was well short of the Guidelines range for both first-degree murder (life) and second-degree murder (324-405 months) for someone in Fitch’s criminal history category. Finally, while all parties agree that the effect of uncharged conduct on Fitch’s sentence was unusually weighty, it is not unprecedented. See United States v. Mayle, 334 F.3d 552, 565, 567-68 (6th Cir.2003) (upholding 23-level departure based on uncharged murders of defendant’s identity-theft victims); United States v. Vernier, 335 F.Supp.2d 1374, 1376-77 (S.D.Fla. 2004) (15-level departure for uncharged murder by which defendant committed access device fraud), aff'd, 152 Fed.Appx. 827 (11th Cir.2005). 2. Prior Incarceration and Pre-Indictment Delay Fitch also argues that the district court failed to consider either his incarceration on the 2000 charges or the pre-indictment delay on the 2004 charges. The district court found that the judge who sentenced Fitch on the 2000 charges had not taken the facts driving the second sentence (most notably Bozi’s death) into account. Since we see no basis on which to question that finding, we hold that the district court was not required to consider the prior incarceration. Cf. U.S.S.G. § 5G1.3 (prior offense must be for conduct that increases sentence for current offense to warrant consideration). We likewise hold that pre-indictment delay was not a relevant sentencing factor. V For the foregoing reasons, the district court’s judgment is AFFIRMED. . Fitch also appeals the district court's order denying his pretrial motion to dismiss the indictment based on Sixth Amendment speedy trial grounds. We affirm the district court’s order because Fitch did not satisfy his burden of showing that he faced the \"actual restraints imposed by arrest and holding to answer\" the criminal charges at issue in this case prior to his June 2004 indictment. See Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). . Fitch objected to portions of the PSR, but did not request a hearing pursuant to Federal Rule of" }, { "docid": "21419984", "title": "", "text": "judicial immunity apply in the present case. Starting with the second exception, Head as the tribunal’s hearing officer clearly possessed jurisdiction over the limited issue on remand of whether termination of employment was too severe a sanction to impose on Dixon. See, e.g., Fankhauser v. Cobb, 163 S.W.3d 389, 393 (Ky.2005) (extending “the tribunal's] ... ultimate control over the termination of a teacher’s contract” to include “the power to impose lesser sanctions in lieu of termination”). Dixon does not suggest otherwise. Regarding the first exception, Head’s role as the hearing officer was clearly “taken in [his] judicial capacity.” See De-Piero, 180 F.3d at 784. Dixon complains that Head’s interpretation of the remand mandate as barring the introduction of new evidence perpetuated the “malfeasance” initiated by the other defendants at the first tribunal hearing in 1996. But whether Head properly construed the remand mandate is beside the point. All that matters is that he in fact did so, because construing remand orders is certainly “a function normally performed by a judge.” See id. Dixon fails to meaningfully dispute the legal bases of Head’s immunity defenses in his reply brief. He simply argues that, “[although Appellee Head may eventually be able to assert some sort of immunity, such contentions are not properly before the Court of Appeals at the present time.” But this argument is incorrect for the reasons set out in Abercrombie & Fitch, 280 F.3d at 629, as noted above. In sum, the dismissal of Head on statute-of-limitations grounds was improper, but affirmance is nonetheless appropriate in light of his legally meritorious immunity claim. 3. Harmless error The district court concluded its opinion with what is best described as an alternative harmless-error determination. Specifically, the court noted that even if the allegedly forged and/or altered photographs were excluded [from the tribunal hearings], Dixon has confessed to taking photos of a 17 year old student of his who was not wearing any clothing above the waist. Neither has Dixon alleged that former Superintendent Tolliver was exposed to the allegedly forged and/or altered photographs, and it was her determination of conduct unbecoming" }, { "docid": "23194866", "title": "", "text": "given a consecutive sentence. To expedite the criminal appeals process, this court chose to resolve Makris’ challenges to the sufficiency of the evidence in his direct appeal, reversing his conviction under Count I but rejecting that attack on the remaining counts. What could not be finally decided in our prior disposition was the crucial question of defendant’s competency to stand trial. In April 1970, approximately two years before trial, Makris underwent radical brain surgery for the removal of a large pituitary tumor. The operation required manipulation of the frontal lobes and destruction of the pituitary gland itself. All experts agree that the surgery left defendant impaired both physically and mentally. The extent of that impairment and the legal effects that flow therefrom are the central issues in this case. From the outset of this litigation, the proper assessment of defendant’s mental state has been of major concern. Prior to the bench trial, the judge appointed a psychiatrist to examine Makris and report on his condition to the court. In addition, the court held an extensive pretrial hearing, pursuant to a defense suppression motion, which in effect determined Makris’ sanity at the time of the offense. Although affirming the district court’s finding of sanity on appeal, we were constrained to hold the procedures employed deficient, in that no hearing directed to the issue of competency to stand trial had been conducted, a violation of the strictures of 18 U.S.C. § 4244. We remanded for the two-step determination of whether a meaningful nunc pro tunc hearing was possible and, if so, whether Makris was fit to stand trial in 1972. Following remand, the district court directed defendant to undergo further psychiatric evaluation at the Medical Center for Federal Prisoners at Springfield, Missouri. The tests were conducted in April 1974 and the competency hearing set for May 30, 1974. A continuance was granted when defendant alleged that he suffered a stroke during his stay at Springfield. When the hearing finally commenced on December 3, 1974, Makris apparently suffered a seizure in the courtroom. Although defendant was hospitalized and thus unable to be present" }, { "docid": "21419985", "title": "", "text": "meaningfully dispute the legal bases of Head’s immunity defenses in his reply brief. He simply argues that, “[although Appellee Head may eventually be able to assert some sort of immunity, such contentions are not properly before the Court of Appeals at the present time.” But this argument is incorrect for the reasons set out in Abercrombie & Fitch, 280 F.3d at 629, as noted above. In sum, the dismissal of Head on statute-of-limitations grounds was improper, but affirmance is nonetheless appropriate in light of his legally meritorious immunity claim. 3. Harmless error The district court concluded its opinion with what is best described as an alternative harmless-error determination. Specifically, the court noted that even if the allegedly forged and/or altered photographs were excluded [from the tribunal hearings], Dixon has confessed to taking photos of a 17 year old student of his who was not wearing any clothing above the waist. Neither has Dixon alleged that former Superintendent Tolliver was exposed to the allegedly forged and/or altered photographs, and it was her determination of conduct unbecoming which the tribunal was meeting to address. Dixon, 404 F.Supp.2d at 968 (footnote omitted). Indeed, despite the number of briefs filed by the parties (five) and the multitude of issues raised by Dixon, this is legally an easy case. Almost all of Dixon’s arguments, as the district court made clear, revolve around his core contention that the photographs used to justify his firing were faked. He therefore expects that our decision will, among other things, answer the question of “whether in this Circuit the United States continues to join the ranks of civilized nations that erect a firewall against having their legal institutions deliberately use faked evidence to frame people in trials or hearing.” As each of the defendants properly insist, however, Dixon’s characterization of the case is not only directly contradicted by the record, but irrelevant. First, the administrative tribunal explicitly and unanimously found after the second and final hearing that “all the exhibit photos are legitimate, and the Tribunal does not believe any of the exhibit photos were altered or manipulated in any" }, { "docid": "9905495", "title": "", "text": "Court of Criminal Appeals of Alabama affirmed Davis’ conviction on October 1, 1974, Davis v. State, 53 Ala.App. 598, 302 So.2d 571 (1975). On November 8, 1974, the trial court denied a petition for writ of error, coram nobis; the Court of Criminal Appeals affirmed this judgment on February 18, 1975. Finally, on April 24, 1975, the Alabama Supreme Court denied Davis’ petition for a writ of certiorari. . Davis’ first petition was dismissed on December 20, 1974. His second petition was dismissed on June 11, 1975. “Defendant did not testify at trial, although the record indicates no evidence that he acted incompetently at that proceeding.” 545 F.2d 464, 465. (Emphasis supplied). “Dr. Dean’s report, defendant’s demeanor at trial, testimony of lay witnesses.” . . With respect to the Pate requirement that the trial court hold a competency hearing whenever defendant raises a bona fide doubt as to his competency to stand trial, our examination focuses on the facts known to the trial court at the time of trial. These facts are not in dispute; only the inferences to be drawn from those facts are contested. Those inferences being constitutionally guided by Pate and its progeny, no state evidentiary hearing was required. Likewise with regard to the substantive issue of competency, we have determined that the factual allegations contained in appellant’s petition, even if accepted as true, do not meet any test that this circuit has established as a threshold requirement that a claim of incompetency must satisfy; neither the ‘substantial allegations’ language of Lee, 386 F.2d at 97, the ‘bona fide’ doubt test of Pate and progeny —e. g. Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974); Jordan v. Wainwright, 457 F.2d 338 (5th Cir. 1972); or the ‘real, substantial and legitimate doubt’ standard of Bruce, 483 F.2d at 1043.” 545 F.2d 465-466. (Emphasis supplied). . Petitioner’s counsel were appointed by the court and could hardly have been expected to have such a mental examination made at their own expense after the trial judge refused to order it. . At the evidentiary hearing, Judge Fred Folsom, Circuit Judge" }, { "docid": "22577562", "title": "", "text": "factors relating to perception and facility are to be considered. However, once it is determined that the accused has the requisite mental capacity, his method of maintaining that capacity is significant only in the area of continued competency throughout the proceedings. Hayes urges that the trial court erred by failing to conduct, su a sponte, a competency hearing during the trial. The standard applied by this court in determining whether a competency hearing was warranted during the trial is whether the evidence presented to the trial judge is sufficient to raise a ‘bona-fide doubt’ as to the defendant’s competence to stand trial. In other words, there must be some indication to the trial judge that competency to stand trial is a substantial issue before a referral of the defendant to a psychiatric examination is required. The minimum showing required for an examination must turn on the issue raised and the facts presented. Tyler v. Beto, 391 F.2d 993, 997 (5th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969) (emphasis in original) (citations omitted). See Fitch v. Estelle, 587 F.2d 773, 777-78, (5th Cir. 1979). Here, defendant was found competent at a competency hearing. After that finding, the trial judge made this request: I would like to ask counsel for the defense to do this: if at any time during the progress of the proceedings . you feel there is any question about Mr. Hayes’ ability to communicate with you . to consult with you with a reasonable degree, of rational understanding of the proceedings against him — if at any time Mr. Hayes is in this Court and you feel there is a question about his ability to understand, if you will call that to my attention, then we would see what the situation is and make a determination at that time. Appellant Hayes’ counsel remained silent on this matter throughout trial. The only facts that came to the trial court’s attention after the original competency determination were that Hayes’ medication had been increased and that Hayes felt “kind of fuzzy, just kind of" }, { "docid": "7845039", "title": "", "text": "Cir. 1968, 391 F.2d 993. A habeas petitioner who contends that he was entitled to a competency hearing must show that there were matters known to the trial court that raised at that time a “real, substantial, and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel”. Bruce v. Estelle, 5 Cir. 1973, 483 F.2d 1031, 1043. The test is an objective one. The duty to hold a competency hearing turns not on what the trial judge in fact had in mind, but whether the facts before him were such as to create a reasonable doubt as to the defendant’s competency. Grissom v. Wainwright, 5 Cir. 1974, 494 F.2d 30. The evidence before the habeas court concerning the facts known to the trial judge consisted of the trial record and the transcript of the nunc pro tunc competency hearing. The only indicia of Pedrero’s incompetency that appeared to the trial court, so far as the record shows, were the statements of Pedrero’s counsel that Pedrero was a drug addict and that Pedrero had been committed in 1967 to a state mental institution at Chattahoochee. The standard for determining competency to stand trial is “ ‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”. Dusky v. United States, 1960, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824. At no time, so far as the trial record shows, did Pedrero’s trial counsel, Kaylor, suggest that Pedrero had difficulty understanding the proceedings against him or that Pedrero lacked the ability to cooperate or consult with him rationally. His attorney brought before the habeas court no evidence that Kaylor ever suggested to the trial court that Pedrero was unable to assist in his own defense. As we stated in Jordan v. Wainwright, 5 Cir. 1972, 457 F.2d 338, 339, “no sanity hearing is mandated by Pate v. Robinson by a naked suggestion that the defendant" }, { "docid": "23365597", "title": "", "text": "the client’s transactions that is not typical of the relationship between a journalist and the activities upon which the journalist reports. Accordingly, we believe that this evidence also counsels strongly against finding that Fitch may assert the privilege for this information. Taking these two factors together, we conclude that the district court did not abuse its discretion in finding that Fitch was not entitled to assert the journalist’s privilege for the information at issue. For the sake of clarity, we note that we are not deciding the general status of a credit rating agency like Fitch under New York’s Shield Law: Whether Fitch, or one of its rivals, could ever be entitled to assert the newsgathering privilege is a question we leave for another day. Nor do we seek to amplify or interpret New York law beyond the facts of this case. We simply conclude that on these facts, the district court did not abuse its discretion by concluding that Fitch had not sufficiently shown that the information it sought to protect was gathered pursuant to the newsgathering activities of a professional journalist. Because we decide here that Fitch may not assert the privilege, we do not reach Fitch’s claim that the district court’s conclusion that ASB had, in any event, overcome the privilege should be reversed for the absence of statutorily-mandated “clear and specific findings made after a hearing.” N.Y. Civ. Rights Law § 79-h(c). We also need not decide if Fitch has waived its privilege claim by disclosing some of the contested information to the OTS, or by failing to produce a privilege log in accordance with Fed. R Civ. P. 45(d)(2) and S.D.N.Y. Local Civ. R. 26.2(a)(2). We have considered all of appellant’s arguments. For the foregoing reasons, the order of the district court is affirmed. The mandate shall issue forthwith. . ASB also subpoenaed Moody’s, and Moody's initially also resisted on the grounds of the Shield Law. After a motion to enforce was filed, but before Moody’s reply was due, the two sides reached a settlement." }, { "docid": "7312943", "title": "", "text": "at 890, citing McCrae v. State, 437 So.2d 1388 (Fla.1983). No evidentiary hearing was held in state court to determine whether the petitioner was mentally incompetent at the time of trial and sentencing. The district court below similarly denied the petitioner’s claim of incompetency, (1) citing procedural default or waiver due to his failure to argue this claim before the state courts on direct appeal, and (2) finding, in any event, that insufficient evidence had been presented to raise a legitimate doubt as to the petitioner’s mental competence and thereby establish his entitlement to a competency hearing. Again, no evi-dentiary hearing was held. Instead, the district court relied solely on the trial transcript and other documentary evidence. 1. Procedural Default. Binding precedent fully supports the petitioner’s contention that the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), does not operate to preclude a defendant who failed to request a competency hearing at trial or pursue a claim of incompetency on direct appeal from contesting his competency to stand trial and be sentenced through post-conviction proceedings. See Zapata v. Estelle, 588 F.2d 1017, 1021 (5th Cir.1979); Nathaniel v. Estelle, 493 F.2d 794, 798 (5th Cir.1974); Bruce v. Estelle, 483 F.2d 1031, 1037 (5th Cir.1973). Indeed, as the Supreme Court stated in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Id. at 384, 86 S.Ct. at 841; Zapata v. Estelle, supra, 588 F.2d at 1021; Bruce v. Estelle, supra, 483 F.2d at 1037. Therefore, the district court below erred in holding that the petitioner was procedurally barred from pursuing a claim of mental ineompetency in a federal habeas corpus proceeding. The district court’s opinion attempts to distinguish Pate v. Robinson on factual grounds, noting that Robinson’s sanity had been “very much at issue” throughout the criminal proceedings against him, while the petitioner in this case considered but rejected proffering" }, { "docid": "3384980", "title": "", "text": "petition alleged ineffective assistance of counsel. It presented two claims. First, he claims that his pleas of nolo contendere were involuntary because he thought the denial of his motion to suppress would be reversed on appeal. The magistrate suggested that this claim was wholly frivolous, and the district court agreed. We agree that this claim is frivolous. As a second claim, Slicker alleges that he relied upon the representations of his lawyer that he would serve no more than three years before being paroled. The district court ruled against Slicker on the ground that a review of the transcript of his plea colloquy revealed that the court informed Slicker of the maximum sentence that could be imposed for a trafficking conviction. Whether or not the court informed him of the maximum sentence is not relevant to the issue Slicker now presents. We understand the issue to be: whether Slicker’s lawyer advised him that a plea agreement had been negotiated which provided that he would serve less time than the maximum penalty. The fact that Slicker may have been made aware of the maximum penalty which could be imposed does not resolve this issue. Because no transcript of the conversations between Slicker and his lawyer exists, an evidentiary hearing may be necessary to resolve this issue. An evidentiary hearing, however, will give Slicker no relief unless the allegations in his petition are sufficient to satisfy the standards set forth in Hill v. Lockhart, 474 U.S.-, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill v. Lockhart, the Supreme Court found that a state prisoner was not entitled to an evidentiary hearing on his federal habeas corpus petition in which he merely alleged that his guilty plea was involuntary due to ineffective assistance of counsel. The Court held that the district court did not err in declining to hold a hearing on the petitioner's claim because he failed to allege that had his lawyer correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. In order to prevail, Slicker must prove not" }, { "docid": "23471486", "title": "", "text": "also opined that Torres was competent to stand trial. Torres initially pleaded not guilty by reason of insanity. The court then appointed physicians to assess Torres’s sanity: Dr. Wells for the defense, and Dr. Sharma for the State. Dr. Sharma concluded that Torres was sane at the time of his offenses. Both Dr. Wells and Dr. Sharma filed reports with the court. Six months after his initial appearance, Torres again appeared in court and withdrew his insanity plea, even though his counsel refused to join in the withdrawal. Torres sought to have a new lawyer appointed, or to represent himself; the court refused. The court never addressed the question of whether Torres was competent to stand trial. In the middle of Torres’s trial, his counsel informed the court that she believed that there might be a doubt about Torres’s competence. In a colloquy between Torres’s counsel and the trial court judge, which we relate in full below, the judge stated that Torres was not entitled to a competency hearing under Pate. Torres was subsequently convicted of three counts of attempted premeditated murder and two counts of false imprisonment of a hostage. Torres’s direct and collateral appeals were denied by the California Court of Appeal and the California Supreme Court. The Court of Appeal found that no competency hearing was required under Pate. Torres then filed this federal petition for habeas corpus. The district court granted relief, but did not hold an evidentiary hearing. RIGHT TO A COMPETENCY HEARING UNDER PATE The sole issue on appeal (and the sole issue presented by Torres’s petition for habeas corpus) is whether the state trial judge violated Torres’s due process rights by failing to hold a competency hearing to determine whether Torres was competent to stand trial. The substantive standard for determining competence to stand trial is whether Torres had “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d" }, { "docid": "22438356", "title": "", "text": "court focus its attention specifically on the issue whether de Kaplany, assuming he was competent to stand trial, also was competent to take the serious step of surrendering certain fundamental constitutional rights by pleading guilty. Under these circumstances in Sieling v. Eyman we remanded the proceedings to the state court to resolve the question of competency to plead guilty. We do not believe this form of relief is always necessary or appropriate. The hearing before the district court on this petition was quite thorough with respect to competence to plead guilty. Somewhat surprisingly, in view of the period of time that has elapsed since de Kaplany’s trial, several of the psychiatrists who testified at the trial, as well as petitioner’s counsel at the trial, appeared and testified at the hearing in the district court. As a result of the hearing the district court concluded: “Notwithstanding testimony by doctors at the present habeas corpus hearing concerning their observations of petitioner after his conviction and during his ultimate imprisonment, and their opinions based thereon, we cannot say and are unable to find or conclude from the evidence before us, considered as a whole, that petitioner in fact lacked the requisite mental capacity to stand trial or that he in fact lacked the requisite mental capacity to enter his plea of guilty, within the meaning of the authorities cited, supra. Nor can we say or find that petitioner’s change of plea was involuntary because of coercion by his attorney or otherwise. It may be noted that, according to the evidence, petitioner was sufficiently aware, assertive and resistant to pressure as to dismiss his first attorney and to engage other counsel to try his case.” We have reviewed the record of the hearing and agree with this conclusion. Due process does not require another hearing on this issue nor would any useful purpose be served thereby. Under the circumstances of this case we believe a retroactive determination of competency to plead guilty not only is possible but also appropriately was made by the district court. In expressing this view we do not intend to" }, { "docid": "3494476", "title": "", "text": "a Pate violation is established, the federal habeas court must next consider whether a meaningful hearing can be held nunc pro tunc to determine retrospectively the petitioner's competency as of the time of trial. Id. at 1262. If so, the petitioner bears the burden of proving his incompetence by a preponderance of the evidence; if not, the habeas writ must issue, subject to retrial at the state's discretion. Id. This Pate procedural guarantee is not before the court in the present case, having been expressly abandoned by Carter on appeal. Second, a habeas petitioner may collaterally attack his state conviction by directly alleging incompetence at the time of trial, thereby claiming a violation of the substantive right not to be tried and convicted while incompetent, rather than of the procedural guarantee of a competency hearing in the event that a bona fide doubt arises at trial as to competency: It is always open for the defendant to later assert his actual incompetence at trial in a subsequent collateral proceeding, but the substantive claim should not be confused with a defendant’s procedural rights trader Pate to a hearing whenever a bona fide doubt as to competence surfaces at trial. Reese v. Wainwright, 600 F.2d 1085, 1093 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979). Although Carter originally claimed both that the state trial court violated his due process rights by failing to conduct an evidentiary hearing on his competency to stand trial sua sponte, and that the federal district court should conduct a nunc pro tunc evidentiary hearing to determine his competency at the time of trial, Carter has abandoned the former claim on appeal. Therefore, the issue before us is restricted to the question of whether the district court erred by failing to conduct a nunc pro tunc evidentiary hearing on the question of competency at the time of trial. .Carter claims that the state habeas court entered findings of fact and conclusions of law exclusively on the procedural Pate claim, not the substantive incompetency claim, thereby forfeiting the presumption of correctness afforded state" }, { "docid": "23652818", "title": "", "text": "That accounts—that accounts for the content of—the spirit of the petition.” Lee having thus cooperated on his trial and on appeal with the presentation of what he now claims to have been a fraudulent defense of insanity, his claim of fraud and conspiracy is precluded by his prior conduct. We agree with the district court “that there is simply no evidence tending to prove any conspiracy against Lee.” Nothwithstanding the fact that Lee abandoned any contention that he was incompetent at the time of his trial and conviction for murder, the district judge carefully and cautiously complied with the en banc court’s mandate and answered each of the pertinent four questions. The district court found that: “Lee was, in fact, mentally competent to stand trial in October 1943 and that there was no deprivation of his constitutional rights by the failure of the Alabama authorities to conduct a hearing pursuant to § 426, Title 15, Code of Alabama, for the purpose of determining his mental competency at that time.” Lee v. Alabama, supra, 291 F.Supp. 927. Lee argues that Pate v. Robinson, supra, requires his immediate discharge because the state court denied his right to a competency hearing twenty-five years ago. The Supreme Court held in Pate: “Since we do not think there could be a meaningful hearing on that issue at this late date, we direct that the District Court, after affording the State another opportunity to put Robinson to trial on its charges within a reasonable time, order him discharged.” (Emphasis added.) 383 U.S. at 377-378, 86 S.Ct. 836, 838,15 L.Ed.2d 815. In the case sub judice, however, the district judge specifically found that there could be a meaningful hearing afforded Lee on the issue of competency. We cannot say that this finding was clearly erroneous. Indeed, fortuitous circumstances prevailed here, and we therefore go so far as to agree with the findings of the district judge. Dr. J. S. Tarwater, a member of the lunacy commission which originally determined Lee’s sanity, testified that Lee could be given a fair competency hearing now and that all records pertaining" }, { "docid": "14118610", "title": "", "text": "legally sane at the time of the rape. Based on this evidence, the judge allowed the guilty plea to stand. There was no direct appeal. Curry’s pro se habeas petition in the district court generally alleged, inter alia, that his plea was involuntary, though not specifically focusing on the competency question. In denying the petition without a hearing, the district court squarely addressed the competency issue and held that petitioner had sufficiently exhausted state remedies on this point. The court then refused to find petitioner’s plea involuntary based on the fact that Curry had been represented by reasonably effective counsel at the time of the sentencing. See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). We agree with the district court’s conclusion, but for a different reason. Although the voluntariness of the plea issue is often intertwined with the question of whether defendant was represented by competent counsel, there is an independent duty imposed upon the court to determine if an accused possesses the mental capacity to enter a knowing and intelligent plea. We recognized in Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir. 1970), cert. denied, 405 U.S. 1030, 92 S.Ct. 1299, 31 L.Ed.2d 448 (1972), that unlike other nonjurisdictional defects, a claim of mental incompetency renders the plea involuntary and so cannot be waived by entry of the plea. Although a person who asserts incompetency at the time of arraignment cannot be held to have waived any right to challenge that plea on incompetency grounds by the mere entry of the plea, petitioner here cannot succeed on the merits of his claim. Pate v. Robinson requires that where there is a sufficient doubt of an accused’s competency, the state must hold an adequate hearing to resolve that doubt. Due process, however, does not mandate a full-blown hearing every time there is the slimmest evidence of incompetency. See United States ex rel. Roth v. Zelker, 455 F.2d 1105 (2d Cir. 1972). In today’s case, the sentencing court was put on notice of a possibility of an impediment to proceeding by Curry’s cryptic “insanity” statement coupled with his" }, { "docid": "21419978", "title": "", "text": "counter Lawson’s defense that her tenure as counsel for the school officially ended in 1998. His obstruction-of-prosecution argument is also meritless because his allegations that Clem, Lawson, and Saylor conspired to conceal the fraudulent photographs from him are just that—allegations that find no support whatsoever in the record. In fact, as discussed above, his concession in his original § 1983 complaint that he had “viewed [the photographs] in 1996” directly contradicts his obstruction-of-prosecution argument. 2. Dismissal of Head ' We must still decide whether the statute-óf-limitations justification properly applies' to Head. Head’s first contact with Dixon occurred in September of 2005, when Head presided over the second tribunal hearing following the remand from the Harlan County Circuit Court. Dixon filed his amended complaint in the district court less than a month later. The case against Head was therefore timely, and the district court erred in concluding otherwise. Head concedes as much in his brief, acknowledging that he “did not assert a statute of limitation defense” in the court below and noting that “Dixon is correct in arguing that Mr. Head’s actions took place within one year of when he filed his amended complaint.” But this error in the district court’s basis for dismissing Head does not mandate reversal. The dismissal of Dixon’s claims against Head is still proper on the alternative ground that Head was immune from liability in his capacity as a hearing officer. Specifically, Head argues that three separate forms of immunity shield him from liability: “quasi-judicial immunity from suit, his qualified immunity from suit, and ... the sovereign immunity and Eleventh Amendment bar to bringing a damage action against a state official sued in his official capacity.” Head properly notes as an initial matter that we “may affirm on any grounds supported by the record even if different from the reasons of the district court.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir.2002). Although the immunity issue was not resolved by the district court, which dismissed Dixon’s claims against all of the defendants solely on statute-of-limitations grounds, the issue" }, { "docid": "11865722", "title": "", "text": "at all. The circumstances that should exist to justify appointment of counsel will naturally vary, depending upon the legal contentions raised, the factual issues presented and the background of the individual involved. We need only comment that where contentions raised are not frivolous on their face, and if it appears upon the court’s examination of the record that it is doubtful whether petitioner can obtain an adequate hearing without the effective assistance of counsel, then the better practice would be to appoint counsel. With competent counsel acting on a petitioner’s behalf future repetitive claims and petitions may well be obviated. Counsel can amend the petition and incorporate all possible grounds for one hearing, and thereby avoid multiple hearings. The instant case presents a good faith claim of “mental incompetency” at the time of the plea. Taking into consideration the confusing background of appellant’s own claims, as well as the record upon appeal and the factual issues raised, we feel that a full and fair hearing would necessitate the appointment of competent counsel to lend his assistance to appellant in the presentation of the issues raised. Accordingly, the order of the district court dismissing the petition for writ of habeas corpus is vacated, with directions to stay further proceedings until such time that appellant has filed a new petition in the state district court along with an application for appointment of counsel to conduct a plenary hearing on appellant’s claims of incompetency or involuntariness of his plea. In the event the state court denies appellant a plenary hearing or the appointment of counsel, he may file an application to reopen this proceeding in the federal district court wherein counsel will then be appointed and a plenary hearing will be held. Cf. Worley v. Swenson, 386 F.2d 186 (8 Cir. 1967). This action is reversed and remanded with directions to stay further proceedings and to take such other action necessary consistent with this opinion. . “* * * Smiley alleged that his plea of guilty had been motivated by the giving of a coerced confession or incriminating statement. Although the existence of" } ]

[ { "docid": "22651476", "title": "", "text": "Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 285; Citizens to Preserve Overton Park v. Volpe, supra, at 416. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 286. See also Camp v. Pitts, 411 U. S. 138, 142-143 (1973) (per curiam). For purposes of these cases, it is also relevant that Congress required a record of the rulemaking proceedings to be compiled and submitted to a reviewing court, 15 U. S. C. § 1394, and intended that agency findings under the Act would be supported by “substantial evidence on the record considered as a whole.” S. Rep. No. 1301, 89th Cong., 2d Sess., 8 (1966); H. R. Rep. No. 1776, 89th Cong., 2d Sess., 21 (1966). > The Court of Appeals correctly found that the arbitrary- and-capricious test applied to rescissions of prior agency regulations, but then erred in intensifying the scope of its review based upon its reading of legislative events. It held that congressional reaction to various versions of Standard 208 “raise[d] doubts” that NHTSA’s rescission “necessarily demonstrates an effort to fulfill its statutory mandate,” and therefore the agency was obligated to provide “increasingly clear and convincing reasons” for its action. 220 U. S. App. D. C., at 186, 193, 680 F. 2d, at 222, 229. Specifically, the Court of Appeals found significance in" } ]

[ { "docid": "1377229", "title": "", "text": "truck standard.” Id. Finally, NHTSA declined to change the regulatory definition of cars and light trucks to close the SUV loophole and refused to regulate vehicles between 8,500 and 10,000 lbs. GWVR, other than MDPVs. See id. at 17,574. II. STANDARD OF REVIEW The Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (2007), provides that agency action must be set aside by the reviewing court if it is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Competitive Enter. Inst. v. NHTSA (CEI III), 45 F.3d 481, 484 (D.C.Cir.1995) (quoting 5 U.S.C. § 706(2)(A)) (applying the APA to review a rulemaking under the EPCA). The scope of review is narrow, but “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citation omitted). An agency rule would normally be arbitrary and capricious if: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. The reviewing court “ ‘may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ ” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). If Congress has spoken directly to the “precise question at issue,” then we must give effect to Congress’s “unambiguously expressed intent.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id." }, { "docid": "21289087", "title": "", "text": "are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.” Id. Because all of R-CALF’s new evidence is outside the administrative record and of very limited use, and because we agree with amici that extension of this litigation will aid R-CALF in its attempt to “create, on a rolling basis, a one-sided evidentiary record that supersedes USDA’s administrative record,” Brief of the Government of Canada at 15, we decide to reach the merits of this case. Legal Standard Under the APA, an agency action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We must determine whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir.2004) (citation omitted). This standard of review is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.2000) (citations omitted). In its paradigmatic statement of this standard, the Supreme Court explained that an agency violates the APA if it has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The USDA’s Rulemaking Process The Animal Health Protection Act authorizes the Secretary of Agriculture to ban imports of animals if “necessary to prevent the introduction ... of any pest or disease of livestock.” 7 U.S.C. § 8303. We previously remarked that the statutory language “indicate[s] a congressional intent to give the Secretary" }, { "docid": "2706000", "title": "", "text": "Chevron. See Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. As for Menkes’s assertion that the Coast Guard violated the APA in its decision-making, the arbitrary and capricious standard governs review of all proceedings that are subject to challenge under the APA. See Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417, 422 (D.C.Cir.1986). Thus, if an action is subject to review under the APA, it does not matter whether it is a formal or informal adjudication or a formal or informal rule-making proceeding — all are subject to arbitrary and capricious review under [5 U.S.C.] § 706(2)(A). Harry T. Edwards & Linda A. Elliott, Federal Standards of Review — Review of District Court Decisions and Agency Actions 167 (2007) (emphasis in original). Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). B. Statutory Interpretation of “Voluntary Association ” Menkes does not claim that the Coast Guard violated the APA when it issued the Agency Decision on Remand without first engaging in notice-and-comment rulemaking. And for good reason. The Supreme Court has made it clear that “the fact that [an] Agency ... reachefs an] interpretation through means less formal than ‘notice and comment’ rulemaking does not automatically deprive that interpretation of the judicial deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212, 221, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (citation omitted). Menkes’s sole objection here is that the Coast Guard’s interpretation of the term “voluntary association” in 46 U.S.C. § 9304 is manifestly at odds with the terms of the GLPA and thus arbitrary and capricious under the APA. In" }, { "docid": "11117462", "title": "", "text": "1528, 1522 (8th Cir.1991)). In Motor Vehicle Mfgrs. Ass’n v. State Farm Mutual Ins., 463 U.S. 29, 43,103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983), the Supreme Court provided a framework for determining whether an agency’s action is arbitrary and capricious: [T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between facts found and the choice made.” In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. (citations omitted); see also Macon County Samaritan Memorial Hosp. v. Shalala, 7 F.3d 762, 769 (8th Cir.1993). In the present ease, the Court finds Congress was silent under OBRA 1981 with regard to whether the automobile equity limit should periodically be adjusted for inflation. Under Chevron, and Emerson, the sole issue is whether the Secretary's regulation is reasonable, or whether, as plaintiffs contend, the Secretary’s adoption and continued use of the $1,500 equity limit is arbitrary, capricious, or an abuse of discretion. 1. Food Stamp Survey Plaintiffs’ first argument is that the Secretary’s use of the 1979 Food Stamp recipient survey to set the $1,500 AFDC equity limit renders it arbitrary, capricious, and manifestly contrary to the statute. Plaintiffs argue that data unique to the AFDC population was available within the SIPP study, and that the Secretary “could have directed] or hire[d] someone familiar with the SIPP data” to generate a table to" }, { "docid": "19432995", "title": "", "text": "F.3d at 732 (quoting 5 U.S.C. § 706(2)(A), (C)-(D) ). Agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law \"only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.\" Defs. Of Wildlife v. Zinke , 856 F.3d 1248, 1256-1257 (9th Cir. 2017) (citation omitted); see Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (An \"agency must examine the relevant data and articulate a satisfactory explanation for its action.\") This standard is \"highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.\" Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California , 204 F.3d 1247, 1251 (9th Cir. 2000) ). Review under this standard is narrow, and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation Admin. , 161 F.3d 569, 573 (9th Cir. 1988). Nevertheless, the court must \"engage in a substantial inquiry ... a thorough, probing, in-depth review.\" Native Ecosys. Council v. U.S. Forest Serv. , 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal quotations omitted). B. FOIA Claim Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. United States , 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is" }, { "docid": "16076259", "title": "", "text": "determining whether summary judgment was properly granted, we must “view the case from the same position as the district court” and apply the same standards. Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir.1993). We may affirm the district court grant of summary judgment on any basis supported in the record. Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176 (9th Cir.2000). We review the district court’s factual findings for clear error. Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1140 (9th Cir.1998). An agency’s interpretation or application of a statute is a question of law reviewed de novo. Partridge v. Reich, 141 F.3d 920, 923 (9th Cir.1998). In reviewing an agency’s statutory construction, we must reject those constructions that are contrary to clear congressional intent or frustrate the policy that Congress sought to implement. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also NRDC v. EPA, 966 F.2d 1292, 1297 (9th Cir.1992) (“On questions of statutory construction, courts must carry out the unambiguously expressed intent of Congress.”). Under the Administrative Procedures Act, we review the Secretary’s Initial Finding, in light of the administrative record, to determine if the Finding is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the [Finding] failed to meet statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also 5 U.S.C. § 706(2)(A)-(D). This inquiry, while narrow, must be searching and careful. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). An agency’s action may be arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to" }, { "docid": "11283471", "title": "", "text": "Procedure Act, the Court may set aside formal agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency decisionmaking is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court reviews the Agencies’ interpretation of the HSA under the now-familiar Chevron framework. Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, if “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. But, if the statute is silent or ambiguous with respect to the issue at hand, then the Court must defer to the Agencies so long as their “answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. At Chevron step two, “a ‘reasonable’ explanation of how an agency’s interpretation serves the statute’s objectives is the stuff of which a ‘permissible’ construction is made; an explanation that is ‘arbitrary, capricious, or manifestly contrary to the statute,’ however, is not”. Northpoint Tech. Ltd. v. FCC, 412 F.3d 145, 151 (D.C.Cir.2005) (citations omitted); see also Gen. Instrument Corp. v. FCC, 213 F.3d 724, 732 (D.C.Cir.2000) (“[W]e have recognized that an arbitrary and capricious claim and a Chevron step two argument overlap ....”); Nat’l Ass’n of Regulatory Util. Comm’rs v. ICC, 41 F.3d 721, 726 (D.C.Cir.1994) (“[T]he inquiry at the second step of Chevron overlaps analytically with a court’s task under the Administrative Procedure Act .... ”). III. ANALYSIS To" }, { "docid": "8722111", "title": "", "text": "enacting OBRA, Congress explicitly delegated to HHS the authority to set the figure for the automobile resource exemption; the states could exempt only “so much of the family member’s ownership interest in one automobile as does not exceed such amount as the Secretary may prescribe.” 42 U.S.C. § 602(a)(7)(B)(i) (Supp. V 1993) (emphasis added). No standard was legislatively set to guide the Secretary in prescribing the exemption. Where the delegation of authority is this complete, a court can overturn the regulation only if it is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); see 5 U.S.C. § 706(2)(A) (1988). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782; see McDonald v. Secretary of Health and Human Serv., 795 F.2d 1118, 1122 n. 5 (1st Cir.1986). A regulation will be arbitrary and capricious where: the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). In reviewing a regulation, the court may not substitute its own judgment for that of the agency. Rather, the court must defer to the agency if the agency’s findings have a rational basis and the regulation is reasonably related to the purposes of the enabling legislation. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974); Conservation Law Found." }, { "docid": "14556597", "title": "", "text": "it was exempt from FDA regulation. Because this is a seizure action, Snoring Relief claims that the district court should not have applied the arbitrary and capricious standard. Rather, Snoring Relief contends that it has the burden of proving by a preponderance of the evidence that it was exempt from FDA regulation. Snoring Reliefs argument about the standard of review fails because: (1) Review of FDA regulation and adulteration decisions is governed by the Administrative Procedures Act (APA); (2) The seizure precedents cited by Snoring Relief are not on point; (3) Snoring Relief conceded in its counterclaims that the arbitrary and capricious standard applies; and (4) As a practical matter, Snoring Relief is suggesting that the courts review the agency’s decision de novo. 1. The Administrative Procedure Act (APA) FDA decisions about adulteration and regulation are reviewed under the APA, which states that an agency’s decision should not be overturned unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We have defined the arbitrary and capricious standard as follows: A decision is arbitrary and capricious if the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or product of agency expertise.” O’Keeffe’s, Inc. v. U.S. Consumer Prod. Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Most importantly, “[r]eview under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency.” Id. (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)); Presidio Golf Club v. National Park Service, 155 F.3d 1153, 1160 (9th Cir.1998) (citations omitted). In Bowen, we recently applied the arbitrary and" }, { "docid": "15084973", "title": "", "text": "unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A). The scope of review is limited to the administrative record. See 28 U.S.C. § 2640(e); 5 U.S.C. § 706; USCIT R. 56.1. It is well-settled that the arbitrary and capricious standard of review is not merely deferential to agency action, but the most deferential of the APA standards of review. See In re Gartside, 203 F.3d 1305, 1312 (Fed.Cir.2000) (“Because this [arbitrary and capricious] standard is generally considered to be the most deferential of the APA standards of review, ... the reviewing court analyzes only whether a rational connection exists between the agency’s factfindings and its ultimate action”) (citations omitted). “Such deference [to the administering agency] is justified because ‘[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones,’ Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 866, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and because of the agency’s greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citing Rust v. Sullivan, 500 U.S. 173, 187, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). An agency action will be found to be arbitrary and capricious if the agency has relied upon factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise. Motor Vehicle Mfr. Ass’n v. State Farm Mutual Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citations omitted). The court will uphold an administrative action if the agency has “considered the relevant factors and articulated a" }, { "docid": "3127050", "title": "", "text": "Circuit has identified the following factors for determination of whether an agency’s decision, including promulgation of a regulation, is arbitrary or capricious: A decision may be found to be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.... A rule may also be invalidated under the APA if an agency fails to explain the rule adequately. However, [t]here is no obligation to make references in the agency explanation to all the specific issues raised in comments. The agency’s explanation must simply enable a reviewing court to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them the way it did. Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1121 (9th Cir.1998) (quoting Mt. Diablo Hosp. v. Shalala, 3 F.3d 1226, 1234 (9th Cir.1993)). In asserting that the regulation eliminating the carry forward exception was arbitrary or capricious, plaintiff advances a number of theories, which fall into one of two categories. In the first category, plaintiff argues that the regulation is contrary to the Congressional requirement that the carry forward exception be implemented. However, as discussed above, the Committee Reports do not express the clear intention of Congress. See Shannon v. United States, 512 U.S. 573, 583, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (“We are not aware of any case ... in which we have given authoritative weight to a single passage of legislative history that is in no way anchored in the text of the statute.”); Northwest Forest Resource Council, 82 F.3d at 834-35 (finding legislative history useful to interpret ambiguous statutes, but declining to give effect to legislative history that contradicts or does not directly address the text of the statute); Northern States Power Co., 73 F.3d at 768 (“[W]e are not convinced that" }, { "docid": "1377230", "title": "", "text": "arbitrary and capricious if: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. The reviewing court “ ‘may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ ” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). If Congress has spoken directly to the “precise question at issue,” then we must give effect to Congress’s “unambiguously expressed intent.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. We “must reject administrative constructions which are contrary to clear congressional intent.” Id. at 843 n. 9, 104 S.Ct. 2778. NHTSA’s compliance with NEPA is reviewed under an arbitrary and capricious standard pursuant to the APA. See, e.g., Nat’l Parks & Conservation Ass’n, 241 F.3d at 730. With respect to NEPA documents, the agency must take a “hard look” at the impacts of its action by providing “ ‘a reasonably thorough discussion of the significant aspects of the probable environmental consequences.’ ” Thomas, 137 F.3d at 1149 (quoting Or. Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997)). We must determine whether the EA “ ‘foster[s] both informed decision-making and informed public participation.’ ” Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir.2005) (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). III. DISCUSSION A. Energy Policy and Conservation Act Issues 1. NHTSA’s use of marginal cost-benefit analysis to determine “maximum feasible average fuel economy level” With respect to non-passenger automobiles (i.e., light" }, { "docid": "10159667", "title": "", "text": "(Q(D). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Nevertheless, we require the agency to “examine the relevant data and articulate a satisfactory explanation for its action,” and we will strike down agency action as “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,” or if the agency’s decision “is so im plausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. Separate from the APA, we also give deference to an agency’s interpretation of the statutes and regulations that define the scope of its authority. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. compels us to defer to an agency’s reasonable interpretation of its enabling legislation. 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the Chevron analysis, we must first exhaust the traditional tools of statutory construction to determine whether Congress has “directly spoken to the precise question at issue.” Id. at 842,104 S.Ct. 2778. If we determine that the statute is silent or ambiguous on the question at hand, then at Chevron step two we must respect the agency’s interpretation so long as it “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. A permissible construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778; see also Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476, 483 n.7, 181 L.Ed.2d 449 (2011) (recognizing that Chevron step two is equivalent to the APA’s arbitrary and capricious standard). Chevron deference applies only to agency decisions rendered through formal procedures. United States v. Mead" }, { "docid": "4823099", "title": "", "text": "approval of a SIP under 42 U.S.C. § 7410. A petition to review the EPA’s approval or disapproval of a SIP is governed by the Administrative Procedure Act. See 5 U.S.C. § 706; BCCA Appeal Grp., 355 F.3d at 824. The EPA’s decision is valid unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action that is in excess of statutory authority will also be set aside. Id. at § 706(2)(C). “An agency rule is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Tex. Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923, 933 (5th Cir.1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “If the agency’s reasons and policy choices conform to minimal standards of rationality, then its actions are reasonable and must be upheld.” Tex. Oil & Gas Ass’n, 161 F.3d at 934. Nonetheless, the reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856. “[T]he focal point for judicial review should be the administrative record already in existénce, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). “The court applies the two-step Chevron analysis to questions involving the EPA’s interpretation of the statutes it administers,” including the CAA. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If Congress ‘has directly spoken to the precise question at issue,’ the agency and the court ‘must give effect to the unambiguously" }, { "docid": "2418034", "title": "", "text": "(9th Cir.2004)) (internal quotation marks omitted). Review under this standard “is narrow, and [we do] not substitute [our] judgment for that of the agency.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc)) (alterations in original) (internal quotation marks omitted). Rather, reversal is only proper if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. (quoting Lands Council, 537 F.3d at 987) (internal quotation marks omitted). Additionally, under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we engage in a three-step inquiry when reviewing an agency’s interpretation of a statute that it is entrusted to administer. First, we must decide whether Congress intended “the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Next, we ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Finally, if the statute is silent or ambiguous as to the issue at hand, we then defer to the agency’s reading so long as its interpretation is a reasonable one. Id. at 843, 104 S.Ct. 2778. DISCUSSION I. The Administrative Procedures Act Plaintiffs argue that BSEE’s approval of the OSRPs' was arbitrary and capricious in violation of the Administrative Procedures Act. See 5 U.S.C. § 706(2)(A). According to Plaintiffs, Shell assumed that, in the event of a" }, { "docid": "7678191", "title": "", "text": "question falls within the province of traditional arbitrary and capricious review under 5 U.S.C. § 706(2)(A) (1988). See Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82 (The Court notes that where there has been “an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” and the delegation of authority has been exercised, the agency’s “regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”). Thus, in the present case, State Farm is controlling regarding the standard of review. In State Farm, the Court held: The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. State Farm, 463 U.S. at 43, 103 S.Ct. at 2866 (citations and internal quotations omitted). Under this standard of review, it is clear that the FDA’s regulations must be upheld. The FDA certainly took account of the relevant factors in devising its sixty-percent, industry-wide standard for food retailers’ “substantial compliance” under the NLEA. In the context of the NLEA, Congress intended that the determination of “substantial compliance”" }, { "docid": "6216199", "title": "", "text": "have the force of law. Petitioners contend, however, that certain provisions in the new rules exceed the Commission’s authority under the Act. We reject this contention. The intent of Congress is not unambiguously expressed in the provisions of the Act at issue in this case. Nonetheless, the FCC’s constructions of the Act are entirely reasonable and thus deserving of deference under Chevron Step Two. Petitioners also contend that, whether or not the new rules reflect permissible interpretations of the statute, they should be vacated as “arbitrary and capricious” under the APA. In Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), the Supreme Court explained the APA’s “arbitrary and capricious” test, as follows: The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: “We may not supply a reasoned basis for the agency’s action that the agency itself has not given.” We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. at 43, 103 S.Ct. at 2866-67 (citations omitted). As the Court makes clear, the scope of judicial review under this standard" }, { "docid": "3127049", "title": "", "text": "we conclude the statutory language does not resolve an interpretive issue.”); Northern States Power Co. v. United States, 73 F.3d 764, 766 (8th Cir.1996) (“[W]hen ... the statutes are straightforward and clear, legislative history and policy arguments are at best interesting, at worst distracting and misleading, and in neither case authoritative.”). Here, as plaintiff concedes, the Medicare statute is silent on the issue of providing for the carry foiward of expenses under the LCC limit. Indeed, Congress does explicitly state an exception to the LCC limit, allowing reimbursement of costs to public providers. See 42 U.S.C. § 1395f(b)(2). There is, however, no mention, explicit or implicit, of any other exception to the LCC limit in § 1395f(b), or anywhere else in the Medicare Act. Thus, the answer to the first part of the Chevron test is that Congress has not directly spoken to the question at issue. The court, then, must turn to the second part of the test. B. Was the Regulation Based on a Permissible Construction of the Statute? 1. Standard The Ninth Circuit has identified the following factors for determination of whether an agency’s decision, including promulgation of a regulation, is arbitrary or capricious: A decision may be found to be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.... A rule may also be invalidated under the APA if an agency fails to explain the rule adequately. However, [t]here is no obligation to make references in the agency explanation to all the specific issues raised in comments. The agency’s explanation must simply enable a reviewing court to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them the way it did. Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1121 (9th Cir.1998)" }, { "docid": "20404143", "title": "", "text": "decision contained no clear error of judgment.’ ” Pac. Coast Fed’n of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001). In deciding whether an agency violated the arbitrary and capricious standard, the court must ask whether the agency “articulated a rational connection between the facts found and the choice made.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001). “Agency action should be overturned only when the agency has ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Pac. Coast, 265 F.3d at 1034. A decision that is “inconsistent with a statutory mandate or that frustrate[s] the congressional policy underlying a statute” cannot be upheld. Ocean Advocates, 402 F.3d at 859. The court reviews an agency’s interpretation of a statute under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron dictates a two-step process. At step one, “if, employing the traditional tools of statutory construction,” the court determines that “Congress has directly and unambiguously spoken to the precise question at issue, then the unambiguously expressed intent of Congress controls.” Nw. Envtl. Defense Center v. Brown, 640 F.3d 1063, 1069 (9th Cir.2011) (internal quotation marks and citation omittéd) (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778). At step two, if the court determines that the statute is “silent or ambiguous with respect to the specific issue,” it must determine “whether the agency’s interpretation is based on a permissible construction of the statute. An agency interpretation based on a permissible construction of the statute controls.” Id. (citing Chevron, 467 U.S. at 844, 104 S.Ct. 2778). A. Wild Horse Act Violations Under the Wild Horse Act, the Secretary of the Interior is tasked with protecting and managing the wild" }, { "docid": "8222161", "title": "", "text": "APA requires that we “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We review USDA’s interpretation of the AWA under the familiar standard established in Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See ALDF v. Glickman, 204 F.3d 229, 233 (D.C. Cir. 2000). Under the Chevron framework, an agency’s power to regulate “is limited to the scope of the authority Congress has delegated to it.” Am. Library Ass’n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005). Pursuant to Chevron Step One, if the intent of Congress is clear, the reviewing court must give effect to that unambiguously expressed intent. If Congress has not directly addressed the precise question at issue, the reviewing court proceeds to Chevtvn Step Two. Under Step Two, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are ... manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44 [104 S.Ct. 2778]. Where a “legislative delegation to an agency on a particular question is implicit rather than explicit,” the reviewing court must uphold any “reasonable interpretation made by the administrator of [that] agency.” Id. at 844 [104 S.Ct. 2778], But deference to an agency’s interpretation of its enabling statute “is due only when the agency acts pursuant to delegated authority.” Am. Library Ass’n, 406 F.3d at 699. Edwards, Elliot, & Levy, Federal Standards of Review 166-67 (2d ed. 2013). We also review the agency’s exercise of its delegated authority under the traditional “arbitrary and capricious” standard. Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.” Motor" } ]

[ { "docid": "18107266", "title": "", "text": "1956 when the petition was filed. Plaintiff maintains that its claim did not first accrue until sometime after November 1950 and that, even if it did accrue previously, defendant’s letter of March 30, 1954, was an acknowledgment of indebtedness which tolled the statute of limitations. We agree with defendant that plaintiff’s claim is barred. We have consistently held that a contractor’s claim under a contract for the sale and delivery of goods first accrues “when all that is required of him by the terms of the contract has been fulfilled by the contractor, enabling him to meet any plea of neglect to perform.” L. E. Myers Co., Inc. v. United States, 105 C. Cls. 459, 478 (1946). See also Battelle v. United States, 7 C. Cls. 297 (1871); State Tent & Canvas Co., Inc. v. United Slates, 131 C. Cls. 215 (1955). And, unless it is obligatory under the law or the terms of the contract that a claim be first filed with a governmental agency, the filing of the claim with such an agency cannot postpone the operation of the statute of limitations in this court. Battelle v. United States, supra. “To hold otherwise would leave it within the power of the claimant to postpone or interrupt the running of the statute.” L. E. Myers Co., Inc. v. United States, supra at 478. Plaintiff contends that this general rule cannot apply to the accrual of its claim since defendant’s nonpayment was the result of a dispute as to a question of fact which, under the contract terms, had to be decided by the contracting officer; that, therefore, plaintiff’s claim did not first accrue until the contracting officer made a finding as to the dispute or until a reasonable time after he failed to do so. The authority of a contracting officer to render decisions under contract provisions such as the one at bar is limited strictly to factual questions arising from the contract itself, Pfotzer v. United States, 111 C. Cls. 184 (1948), and does not extend to questions of law. Ruff v. United States, 96 C. Cls. 148" } ]

[ { "docid": "11093869", "title": "", "text": "Ass’n v. United States, 77 Ct. Cl. 481, 522-523 (1933), cert. denied, 291 U.S. 667 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 123 Ct. Cl. 787, 108 F. Supp. 378 (1952); Chan Lai v. United States, 125 Ct. Cl. 142 (1953). Assuming that the Government unconstitutionally took possession of plaintiff’s property, such taking was accomplished when the goods were shipped to defendant in October 1954 — more than sis years prior to the filing of the petition in this case on December 29,1962. Plaintiff’s final contention is likewise non-meritorious. In essence, plaintiff contends that its case was submitted to the Comptroller General within the six-year period of limitations, [admittedly true] and should be deemed to have been referred to the Court of Claims for adjudication under 28 U.S.C. §2510 (1964 ed.). This statute states: § 2510. Eeferral of cases by Comptroller General. The Comptroller General may transmit to the Court of Claims for trial and adjudication any claim or matter of which the Court of Claims might take jurisdiction on the voluntary action of the claimant, together with all vouchers, papers, documents, and proofs pertaining thereto. The Court of Claims shall proceed with the claims or matters so referred as in other cases pending in such court and" }, { "docid": "21261380", "title": "", "text": "claiming entitlement to active duty pay and allowances as well as payment for medical expenses for the period beginning October 21, 1972, and ending April 1, 1974. Plaintiff relies on 37 U.S.C. § 204(g) (1976) as the statutory basis for his action. The statute of limitations governing claims against the United States in this court is contained in 28 U.S.C. § 2501 (1976) which provides, in pertinent part: Every claim in which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. The general rule establishing when a cause of action accrues for statute of limitations purposes has been set out by this court in Oceanic Steamship Co. v. United States, 165 Ct. Cl. 217, 225 (1964). There the court held: A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * Thus, we must determine when each of these claims accrued. Plaintiffs claim for active duty pay accrued against the Government on the date the Government first failed to make payment of the money plaintiff claims entitlement to. Middleman v. United States, 91 Ct. Cl. 306, 308 (1940). In this case the petition shows that such failures to pay all occurred prior to April 1, 1974. With respect to plaintiffs claim for allowances and medical benefits, this claim accrues no later than the time at which plaintiff was separated from his active status. E.g., Crowe, v. United States, 196 Ct. Cl. 565, 567, 452 F.2d 1034, 1035 (1971); DeBow v. United States, 193 Ct. Cl. 499, 503, 434 F.2d 1333, 1335 (1970), cert. denied, 404 U.S. 846 (1971); Wood v. United States, 186 Ct. Cl. 955 (1968); Braun v. United States, 163 Ct. Cl. 84, 85-6 (1963). In the instant case, plaintiffs claim for allowances and medical benefits accrued when the Army took action to stop his active duty pay. This was accomplished by the medical determination of fitness for duty made" }, { "docid": "21325779", "title": "", "text": "view by admitting in its answer a petition allegation that it held possession “under the terms of the December 1, 1965, Iroij letter.” It seems clear from all the facts submitted on the cross motions that defendant is holding under its 1960 Use and Occupancy Agreement with the Government of the Trust Territory. If, however, plaintiffs conveyed any interest in 1965, this was still over nine years before suit was brought and the negotiations for the pecuniary quid fro quo have or should have gone on almost as long. By the 1965 letter, they were to commence “at an early date.” A claim on an implied contract with the United States is held to accrue “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract has been fulfilled by the contractor.” Steel Improvement Co. v. United States, 174 Ct. Cl. 24, 28, 355 F. 2d 627, 630 (1966). We bold, therefore, that any possible claim founded on an implied-in-fact contract accrued more than six years before suit was brought. The plaintiffs say that on February 14, 1974, the United States Office of Management and Budget ousted the Trust Territory Government and its “overseer,” the Department of the Interior, from conduct of the settlement negotiations, and substituted the Department of Defense. We see no way by which this act could be held to toll the statute or accrue a new claim. Of course any suit whenever brought would all along have had to be predicated on the proposition that the United States, not the Trust Territory Government, was the taker in possession or the party who made the contract implied-in-fact. If the obligation to be enforced was that of the latter, the Trust Territory, jurisdiction here would be lacking on another ground. Porter v. United States, 204 Ct. Cl. 355, 496 F. 2d 583 (1974), cert. denied, 420 U.S. 1004 (1975). Plaintiffs also assert support of their claim by the United Nations Trusteeship Agreement; however, the general obligation thereby created, to protect the natives against the loss of their" }, { "docid": "12932989", "title": "", "text": "created when the Bureau of Ships directed plaintiff to ship the material to a Government depot, and accepted delivery of the material. Alternatively, plaintiff seeks to recover on the theory that the instructions by defendant to ship the inventory material, together with the refusal to pay plaintiff, constituted a Fifth Amendment taking. Defendant has raised various defenses including a lack of privity, the statute of limitations, and equitable estoppel. A discussion of all the defenses raised by defendant is not necessary, as this court believes that plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501 (1964 ed.) This statute provides that claims in this court shall be barred unless the petition is filed “ * * * within six years after such claim first accrues.” The rule that a claim based on a contract with the Government first accrues, and the statute of limitations begins to run “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract has been fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 64 F.Supp. 148, 149, 105 Ct.Cl. 459, 478 (1946). See also International Potato Corp. v. United States, 161 F.Supp. 602, 604, 142 Ct.Cl. 604, 606 (1958); Battelle v. United States, 7 Ct.Cl. 297 (1871); State Tent and Canvas Company v. United States, 130 F.Supp. 384, 131 Ct.Cl. 215 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain" }, { "docid": "22804868", "title": "", "text": "to exhaust such remedies, but normally, the statute of limitations runs while he is pursuing them.” If the latter sentence were intended to refer to obligatory “dispute” procedures, it would contravene everything else the court has said on the subject. Other cases cited by the defendant involved contracts without pertinent “disputes” provisions, or where that procedure was not mandatory or was not properly invoked or pursued, or did not extend beyond the contract’s completion date. In Acorn Decorating Corp. v. United States, 146 Ct. Cl. 394, 174 F. Supp. 949 (1959), the contractor failed to appeal from the Corps of Engineers Board to the Secretary of the Army, and then argued that this failure was immaterial because the “disputes” procedure did not actually cover the claim; the court held that if the plaintiff were right in this position the claim was barred by limitations, and if it were wrong the suit was precluded for failure to exhaust the administrative remedy. In The L. E. Myers Co. v. United States, 105 Ct. Cl. 459, 478, 64 F. Supp. 148, 149-50 (1946), the pursuit of the administrative remedy was far too late, and the court disregarded it. In John P. Moriarty, Inc. v. United States, 97 Ct. Cl. 338, 339 (1942), the administrative remedy was merely permissive, as it was in C. L. Maguire Petroleum Co. v. United States, 68 Ct. Cl. 198, 200 (1929). Indicative of the Government’s general acceptance in this court (prior to its recent re-survey of its position) of the rule that the claim does not accrue until the administrative determination are the several instances in recent years in which the Government has suggested dismissal of a petition in this court because the contractor had not yet obtained a final administrative decision on his claim. It is also significant that the Government's briefs initially filed in the four contract cases now before us, as well as in some others, assumed, implicitly or explicitly, that limitations does not run on “claims under the contract” until the administrative determination. For this court the change in the Government’s view did not" }, { "docid": "22804826", "title": "", "text": "United States, 31 Ct. Cl. 105, 133 (1896) ; Joplin v. United States, 89 Ct. Cl. 345, 356, 363 (1939) ; Holton, Seelye & Co. v. United States, 106 Ct. Cl. 477, 499, 65 F. Supp. 903, 906 (1946). More specifically, it has been said that “as a general rule, a cause of action or a claim under a contract does not accrue piecemeal and that where the contract contains a provision * * * with reference to the time when the contract shall be regarded as finally concluded the statute of limitation with reference to bringing suit does not begin to run until that date” (Austin Eng'r Co. v. United States, 88 Ct. Cl. 559, 564 (1939)); that “it was not intended by Congress that section 156 of the Judicial Code, supra, [Section 2501 of Title 28, our limitations provision] should be interpreted to require a multiplicity of suits on various items of a claim arising under an entire contract”, but rather that “all rights of the parties under the contract” are to “be heard and determined at the same time and in one suit” (Holton, Seelye & Co. v. United States, 106 Ct. Cl. 477, 499, 65 F. Supp. 903, 906 (1946)); and that “a suit to recover increased compensation for the performance of contracts predicated upon the terms of contracts, does of necessity involve whatever claims which may be asserted as due under the contracts” (Electric Boat Co. v. United States, 81 Ct. Cl. 361, 367 (1935), cert denied, 297 U.S. 710 (1936)) , In addition, we have warned, in contract cases and in others, that a claimant who splits his cause of action may have to give up the part on which he fails to sue the first time. Baltimore & Ohio R.R. v. United States, 52 Ct. Cl. 468, 478 (1917) ; International Curtis Marine Turbine Co. v. United States, 74 Ct. Cl. 132, 137-38, 56 F. 2d 708, 710 (1932) ; Electric Boat Co. v. United States, 81 Ct. Cl. 361, 367-68 (1935), cert. denied, 297 U.S. 710 (1936); Terteling v. United States, 167" }, { "docid": "23409656", "title": "", "text": "by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues : * * \"* * » A claim of the United States or an officer or agency thereof that does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim may, if time-barred, be asserted only by way of offset and may be allowed in an amount not to exceed the amount of the opposing party’s recovery.” This statute provides: “The Court of Claims shall have jurisdiction to render judgment upon any set-off or demand by the united States against any plaintiff in such court.” The intent of this section is to permit the Government to have all controversies between it and the plaintiff litigated in one forum, once and for all. Cherry Cotton Mills v. United States, 327 U.S. 536 (1946). Plaintiff’s contention that 28 TT.S.C. § 2501 (1970) applies to counterclaims by tbe unites States must be rejected. Dugan & McNamara, Inc. v. United States, 130 Ct. Cl. 603, 124 F. Supp. 650 (1954). We are not unmindful of the principle that a plaintiff may not recover against the United States under the Tucker Act, 28 U.S.C. § 1491 (1970), where the claim is based solely on a contract implied in law. Merritt v. United States, 267 U.S. 338, 341 (1925) ; J. C. Pitman & Sons v. United States, 161 Ct. Cl. 701, 704, 317 F. 2d 366, 368 (1963). This rule derives from judicial construction of the Tucker Act, however, and our research has disclosed no similar authority' which would bar recovery in favor of the United States upon this sort of implied contract where it chooses to interpose it by way of counterclaim under 28 U.S.C. § 1503 (1970). Indeed, one should hestitate to espouse such a view in light of the expansive language of the latter jurisdictional statute (see note 8, supra). In similar" }, { "docid": "11093865", "title": "", "text": "settlement with Sound was not consummated because of claims which the Government had against Sound arising out of this and other contracts between Sound and the Bureau of Ships. Thereafter Ohio went into bankruptcy, and Sound was dissolved. Sound’s assets passed into the hands of its stockholders. Neither Sound, Ohio, nor plaintiff recovered from the Government any of their losses caused by the partial termination for convenience by the Government. Plaintiff twice subsequently communicated with the Bureau of Ships demanding payment, but to no avail. On July 1, I960 plaintiff, having received no decision on the claims submitted to the Bureau of Ships, filed a claim with the Comptroller General. On July 26, 1961 the Comptroller General issued a settlement certificate denying plaintiff’s claim. Motion for reconsideration was denied March 2, 1962. Plaintiff then filed its petition in this court. Plaintiff contends that either an express contract between it and defendant arose when defendant allegedly accepted plaintiff’s offer to settle its termination claim directly with defendant, or that an implied contract to pay for the termination inventory was created when the Bureau of Ships directed plaintiff to ship the material to a Government depot, and accepted delivery of the material. Alternatively, plaintiff seeks to recover on the theory that the instructions by defendant to ship the inventory material, together with the refusal to pay plaintiff, constituted a Fifth Amendment taking. Defendant has raised various defenses including a lack of privity, the statute of limitations, and equitable estoppel. A discussion of all the defenses raised by defendant is not necessary, as this court believes that plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501 (1964 ed.) This statute provides that claims in this court shall be barred unless the petition is filed “* * * within six years after such claim first accrues.” The rule that a claim based on a contract with the Government first accrues, and the statute of limitations begins to run “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract" }, { "docid": "12932990", "title": "", "text": "fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 64 F.Supp. 148, 149, 105 Ct.Cl. 459, 478 (1946). See also International Potato Corp. v. United States, 161 F.Supp. 602, 604, 142 Ct.Cl. 604, 606 (1958); Battelle v. United States, 7 Ct.Cl. 297 (1871); State Tent and Canvas Company v. United States, 130 F.Supp. 384, 131 Ct.Cl. 215 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain on the date of shipment of the materials (October 6, 1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 161 F. Supp. 409, 411, 142 Ct.Cl. 165, 168 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft Ass’n v. United States, 77 Ct.Cl. 481, 522-523 (1933)," }, { "docid": "11093866", "title": "", "text": "termination inventory was created when the Bureau of Ships directed plaintiff to ship the material to a Government depot, and accepted delivery of the material. Alternatively, plaintiff seeks to recover on the theory that the instructions by defendant to ship the inventory material, together with the refusal to pay plaintiff, constituted a Fifth Amendment taking. Defendant has raised various defenses including a lack of privity, the statute of limitations, and equitable estoppel. A discussion of all the defenses raised by defendant is not necessary, as this court believes that plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501 (1964 ed.) This statute provides that claims in this court shall be barred unless the petition is filed “* * * within six years after such claim first accrues.” The rule that a claim based on a contract with the Government first accrues, and the statute of limitations begins to run “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract has been fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 105 Ct. Cl. 459, 478, 64 F. Supp. 148, 149 (1946). See also International Potato Corp. v. United States, 142 Ct. Cl. 604, 606, 161 F. Supp. 602, 604 (1958); Battelle v. United States, 7 Ct. Cl. 297 (1871); State Tent and Canvas Company v. United States, 131 Ct. Cl. 215, 130 F. Supp. 384 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff" }, { "docid": "12932988", "title": "", "text": "was not consummated because of claims which the Government had against Round arising out of this and other contracts between Round and the Bureau of Ships. Thereafter Ohio went into bankruptcy, and Round was dissolved. Round’s assets passed into the hands of its stockholders. Neither Round, Ohio, nor plaintiff recovered from the Government any of their losses caused by the partial termination for convenience by the Government. Plaintiff twice subsequently communicated with the Bureau of Ships demanding payment, but to no avail. On July 1, 1960 plaintiff, having received no decision on the claims submitted to the Bureau of Ships, filed a claim with the Comptroller General. On July 26, 1961 the Comptroller General issued a settlement certificate denying plaintiff’s claim. Motion for reconsideration was denied March 2, 1962. Plaintiff then filed its petition in this court. Plaintiff contends that either an express contract between it and defendant arose when defendant allegedly accepted plaintiff’s offer to settle its termination claim directly with defendant, or that an implied contract to pay for the termination inventory was created when the Bureau of Ships directed plaintiff to ship the material to a Government depot, and accepted delivery of the material. Alternatively, plaintiff seeks to recover on the theory that the instructions by defendant to ship the inventory material, together with the refusal to pay plaintiff, constituted a Fifth Amendment taking. Defendant has raised various defenses including a lack of privity, the statute of limitations, and equitable estoppel. A discussion of all the defenses raised by defendant is not necessary, as this court believes that plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501 (1964 ed.) This statute provides that claims in this court shall be barred unless the petition is filed “ * * * within six years after such claim first accrues.” The rule that a claim based on a contract with the Government first accrues, and the statute of limitations begins to run “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract has been" }, { "docid": "12490800", "title": "", "text": "3) was shipped on July 30, 1946, and received shortly thereafter. Plaintiff’s original petition in this court was filed on October 28,1952, over six years after he received these items and was first able to discover any defects or missing parts. Since an action for breach of warranty would normally accrue at that time, the claims would appear to be barred by limitations. 28 U.S.C. § 2501; e.g., Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 161 F. Supp. 409 (1958). Plaintiff suggests that there was an open account between the parties, subject to a final balance in the future. Though the use of an open account would prevent the statute from running until completion of the last transaction contemplated, the record indicates that, in plaintiff’s dealings with the Government, each purchase was treated separately-. WAA repeatedly requested payment on individual transactions rather than the balance due on an “account”. There was no agreement on, or practice of, a running account. Cf. Baggett Transp. Co. v. United States, 162 Ct. Cl. 570, 578-82, 319 F. 2d 864, 868-71 (1963). Again, although limitations would be stayed until after a final administrative determination of plaintiff’s claims if one were mandatory, there was no such requirement here. These were commonplace, garden variety, claims on surplus sales in which the parties’ agreements established no contractual tribunal to resolve legal or factual disputes. Suit could be brought in ordinary course, without waiting for prior administrative consideration or settlement. See Friedman v. United States, 159 Ct. Cl. 1, 7-13, 310 F. 2d 381, 384-88 (1962), cert. denied, 373 U.S. 932 (1963). Nor did the confession of judgment result in the accrual of new causes of action with respect to these claims. Though the quid, pro quo for plaintiff’s confession may have been the Government’s acknowledgment of his right to assert the present claims, the defendant did not, at the same time, agree to give up any of its possible defenses, one of which was the statute of limitations. There is no basis for deferring the accrual of Causes of Action Nos. 2" }, { "docid": "4047751", "title": "", "text": "Plaintiff maintains that its claim did not first accrue until sometime after November 1950 and that, even if it did accrue previously, defendant’s letter of March 30, 1954, was an acknowledgment of indebtedness which tolled the statute of limitations. We agree with defendant that plaintiff’s claim is barred. We have consistently held that a contractor’s claim under a contract for the sale and delivery of goods first accrues “when all that is required of him by the terms of the contract has been fulfilled by the contractor, enabling him to meet any plea of neglect to perform.” L. E. Myers Co., Inc., v. United States, 1956, 64 F.Supp. 148, 149, 105 Ct.Cl. 459, 478. See also Battelle v. United States, 1871, 7 Ct.Cl. 297; State Tent & Canvas Co., Inc., v. United States, 1955, 130 F.Supp. 384, 131 Ct.Cl. 215. And, unless it is obligatory under the law or the terms of the contract that a claim be first filed with a governmental agency, the filing of the claim with such an agency cannot postpone the operation of the statute of limitations in this court. Bat-telle, Inc. v. United States, supra. “To hold otherwise would leave it within the power of the claimant to postpone or interrupt the running of the statute.” L. E. Myers Co., Inc., v. United States, supra, 64 F.Supp. at page 149, 105 Ct.Cl. at page 478. Plaintiff contends that this general rule cannot apply to the accrual of its claim since defendant’s nonpayment was the result of a dispute as to a question of fact which, under the contract terms, had to be decided by the contracting officer; that, therefore, plaintiff’s claim did not first accrue until the contracting officer made a finding as to the dispute or until a reasonable time after he failed to do so. The authority of a contracting officer to render decisions under contract provisions such as the one at bar is limited strictly to factual questions arising from the contract itself, Pfotzer v. United States, 1948, 77 F.Supp. 390, 111 Ct.Cl. 184, and does not extend to questions of" }, { "docid": "11093867", "title": "", "text": "has been fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 105 Ct. Cl. 459, 478, 64 F. Supp. 148, 149 (1946). See also International Potato Corp. v. United States, 142 Ct. Cl. 604, 606, 161 F. Supp. 602, 604 (1958); Battelle v. United States, 7 Ct. Cl. 297 (1871); State Tent and Canvas Company v. United States, 131 Ct. Cl. 215, 130 F. Supp. 384 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain on the date of shipment of the materials (October 6,1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 168, 161 F. Supp. 409, 411 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft" }, { "docid": "11093868", "title": "", "text": "had completely performed its part of the implied bargain on the date of shipment of the materials (October 6,1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 168, 161 F. Supp. 409, 411 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft Ass’n v. United States, 77 Ct. Cl. 481, 522-523 (1933), cert. denied, 291 U.S. 667 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 123 Ct. Cl. 787, 108 F. Supp. 378 (1952); Chan Lai" }, { "docid": "21265064", "title": "", "text": "November 26, 1951, and the date of its restoration on May 11, 1954, plaintiff could not have pursued the remedy it now seeks to pursue, affords it no relief from the running of the statute of limitations, because plaintiff’s cause of action first accrued more than three years prior to the Wunderlich decision. De Arnaud v. United States, 151 U.S. 483; Whitney’s Admn’x. v. United States, 18 Ct. Cl. 19; Marcos v. United States, 122 Ct Cl. 641. Suit still had to be brought within six years from the date plaintiff’s cause of action first accrued, which was no later than June 25, 1948. Title 28 U.S.C. § 2501, as amended by the Act of September 3, 1954, 68 Stat. 1246, provides in pertinent part: Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. * # * ‡ * A petition on the claim of a person under legal disability or beyond the seas at the time the claim accrues may be filed within three years after the disability ceases. ❖ # # * # In Soriano v. United States, 352 U.S. 270, the Supreme Court held that Congress in prescribing this limitation period meant just that period and no more and that even the existence of a state of war between this country and Japan, which prevented plaintiff from filing his claim, did not toll the running of the statute. Since plaintiff did not bring its suit until April 11,1960, almost twelve years after its claim first accrued, it is clearly barred. It is clear that Congress did not intend to grant any new right of action by the Act of May 11,1954. In Volentine and Littleton, Contractors v. United States, supra, we held it merely intended to restore the status quo ante the Wunder-lich decision. This purpose could not have been expressed more clearly than in the committee report accompanying the “Wunderlich” bill. H.R. 1380, 83d Cong., 2d Sess., states in pertinent part: The purpose of the proposed legislation, as" }, { "docid": "21265063", "title": "", "text": "fraudulent, and plaintiff says it expressly exonerated defendant of fraud. However, that decision was rendered on November 26, 1951, more than three years after plaintiff’s cause of action accrued on June 25,1948. There is no question but that plaintiff could have brought suit at any time prior to the Wunderlich decision on the ground that the Secretary’s determination was arbitrary, capricious, or so grossly erroneous as to imply bad faith. Silas Mason Co. v. United States, 90 Ct. Cl. 266. Cf. Palace Corp v. United States, 124 Ct. Cl. 545, cert. denied 346 U.S. 815; Volentine and Littleton, Contractors v. United States, 136 Ct. Cl. 638. Although the Wunderlich decision took away plaintiff’s remedy of seeking review of the Army’s decision on the ground that it was arbitrary and capricious, this remedy was restored by the Act of May 11,1954 (68 Stat. 81). That Act did nothing more than this, that is, to restore this remedy. Volentine and Littleton, Contractors v. United States, supra. The fact that, in the interim between the Wunderlich decision on November 26, 1951, and the date of its restoration on May 11, 1954, plaintiff could not have pursued the remedy it now seeks to pursue, affords it no relief from the running of the statute of limitations, because plaintiff’s cause of action first accrued more than three years prior to the Wunderlich decision. De Arnaud v. United States, 151 U.S. 483; Whitney’s Admn’x. v. United States, 18 Ct. Cl. 19; Marcos v. United States, 122 Ct Cl. 641. Suit still had to be brought within six years from the date plaintiff’s cause of action first accrued, which was no later than June 25, 1948. Title 28 U.S.C. § 2501, as amended by the Act of September 3, 1954, 68 Stat. 1246, provides in pertinent part: Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. * # * ‡ * A petition on the claim of a person under legal disability or beyond the seas at the time" }, { "docid": "17940600", "title": "", "text": "the government’s motion. II. The statute of limitations provides that: \"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. §2501 (1976). The statute is jurisdictional. Soriano v. United States, 352 U.S. 270, 273-74 (1957); Nager Electric Co. v. United States, 177 Ct. Cl. 234, 249, 368 F.2d 847, 857 (1966). A claim first accrues \"when all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.” Nager, 177 Ct. Cl. at 240, 368 F.2d at 851 (footnote omitted). Therefore, when the plaintiff has done all he must do to establish his entitlement to payment, e.g., perform on his contract, the claim accrues. Id. at 240-41, 368 F.2d at 851-52; International Potato Corp. v. United States, 142 Ct. Cl. 604, 161 F. Supp. 602 (1958). If disputes are subject to mandatory administrative proceedings, then the claim does not accrue until their conclusion. Crown Coat Front Co. v. United States, 386 U.S. 503, 511 (1967); Nager, 177 Ct. Cl. at 242-44, 368 F.2d at 853; Friedman v. United States, 159 Ct. Cl. 1, 8-9, 310 F.2d at 381, 385-86 (1962), cert. denied, 373 U.S. 932 (1963). Pursuit of permissive administrative remedies, however, does not toll the statute of limitations. Soriano, 352 U.S. at 274-75; Clyde v. United States, 80 U.S. (13 Wall.) 38 (1871); Camacho v. United States, 204 Ct. Cl. 248, 259, 494 F.2d 1363, 1369 (1974); Friedman, 159 Ct. Cl. at 11-12, 310 F.2d at 388. III. A. Plaintiffs claim accrued on September 5, 1974, when the bill was presented to the Federal Reserve Bank. A contract claim accrues \"when the contractor could ordinarily demand his money and bring his suit if payment was not made.” Nager, 177 Ct. Cl. at 240-41, 368 F.2d at 852. It is the completion of the contractor’s work and the resulting entitlement to payment, not the failure to pay which creates the claim. In personnel cases, the claim accrues when the employee is" }, { "docid": "4047750", "title": "", "text": "which are being withheld from your client, International Potato Corporation. “Reference is made to your letter, dated 25 March 1954, addressed to “As you were advised at the time of your recent conversation with First Lieutenant Edwin I. Colodny of this office, certain matters involving your client are under consideration by the Department of Justice. Accordingly, until such time as the Civil Division of that Department informs this office that said matters have been appropriately disposed of, this Department does not contemplate any action with respect to payments under the purchase orders mentioned in your letter.” • Defendant has never paid for any of the potatoes received in March 1950. Plaintiff’s petition, seeking payment therefor, was filed in this court on November 9, 1956. It is defendant’s position that plaintiff’s cause of action first accrued when it completed delivery under the contracts on March 21, 1950, or when it made its demands for payment in April 1950, and that, therefore, plaintiff’s claim, in either case, was barred in November 1956 when the petition was filed. Plaintiff maintains that its claim did not first accrue until sometime after November 1950 and that, even if it did accrue previously, defendant’s letter of March 30, 1954, was an acknowledgment of indebtedness which tolled the statute of limitations. We agree with defendant that plaintiff’s claim is barred. We have consistently held that a contractor’s claim under a contract for the sale and delivery of goods first accrues “when all that is required of him by the terms of the contract has been fulfilled by the contractor, enabling him to meet any plea of neglect to perform.” L. E. Myers Co., Inc., v. United States, 1956, 64 F.Supp. 148, 149, 105 Ct.Cl. 459, 478. See also Battelle v. United States, 1871, 7 Ct.Cl. 297; State Tent & Canvas Co., Inc., v. United States, 1955, 130 F.Supp. 384, 131 Ct.Cl. 215. And, unless it is obligatory under the law or the terms of the contract that a claim be first filed with a governmental agency, the filing of the claim with such an agency cannot postpone" }, { "docid": "13470552", "title": "", "text": "is whether the so-called equipment shells for aircraft in the 16 shipments were tanks, as there is no dispute that they were aluminum. In the alternative to its above-stated contention, defendant asserts that the rate payable on the articles shipped was that provided in a Section 22 quotation provided by plaintiff and its connecting carriers for the pertinent shipments. However, as to two of these 16 shipments, i.e., those covered by Government bills of lading AF 6936202 and AF 6936204, defendant correctly contends that this court lacks jurisdiction of the claim because plaintiff’s petition was filed more than 6 years after plaintiff’s right to sue on such shipments accrued. Plaintiff’s petition should be dismissed as to these two shipments. They moved from Torrance, California, respectively, on September 30, and October 81,1957; were delivered to defendant at Kelly Air Force Base, Texas, respectively, on October 8, and November 8, 1957; and in accordance with the billing by the destination carrier, defendant paid the claimed Charges for the transportation services in the respective amounts of $1,332 and $1,402.86 on the respective dates of November 8,1957, and December 6,1957. The General Accounting Office thereafter made no effort to recoup any part of the amounts paid. The petition was filed herein on November 13, 1963, more than 6 years after the delivery of the shipments to defendant. Thus, plaintiff’s claim as to these two shipments is barred by the statute of limitations, 28 U.S.C. §2501 (1958). Baggett Transportation Co. v. United States, 162 Ct. Cl. 570, 578, 319 F. 2d 864, 868 (1963). The statute of limitations is not tolled by the mere fact that plaintiff did not learn of the true identity of the articles shipped until the 1959 statutory post-audit of the other 14 shipments of equipment shells for aircraft. Art Center School v. United States, 136 Ct. Cl. 218, 227, 142 F. Supp. 916, 921 (1956). The 16 shipments of equipment shells for aircraft (on 14 of which timely suit was commenced by plaintiff) resulted from the performance by Webcor, Inc., of an Air Force contract for the design and manufacture" } ]

[ { "docid": "7613997", "title": "", "text": "totality of the SAC’s allegations, Plaintiffs have sufficiently particularized their allegations that Defendants engaged in channel stuffing in order to falsely portray Tellabs’ financials. Y. Scienter A. Legal Standard for Scienter The PSLRA requires that a plaintiff “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u — 4(b)(2). Plaintiffs’ Amended Complaint failed to allege scienter sufficient to meet the mandates of the PSLRA. Essentially, Plaintiffs had lumped their scienter allegations together as to all “Defendants.” As the Court held in its May 19, 2003 Opinion, Plaintiffs must allege facts establishing that each Individual Defendant knew, or recklessly ignored, that the statements were materially false or misleading. Tellabs, 262 F.Supp.2d at 954. This Court has rejected the Second Circuit’s test for scienter where a plaintiff is required to allege either: (1) facts showing that the defendants had both motive and opportunity to commit fraud, or (2) facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Id. Instead, Plaintiffs may use “motive and opportunity” or “circumstantial evidence” to establish scienter under the PSLRA, only if Plaintiffs’ allegations support a strong inference that each Defendant acted recklessly or knowingly. Tellabs, 262 F.Supp.2d at 954; see also Ottmann v. Hanger Orthopedic Group, Inc., 353 F.3d 338, 345 (4th Cir.2003) (“[Cjourts should not restrict their scienter inquiry by focusing on specific categories of facts, such as those relating to motive and opportunity, but instead should examine all of the allegations in each case to determine whether they collectively establish a strong inference of scienter.”). B. Analysis Defendants argue that Plaintiffs have failed to allege scienter under the mandates of the PSLRA. Plaintiffs claim that they have sufficiently alleged a strong inference that each of the Individual Defendants knew or recklessly disregarded the truth. Plaintiffs again lump many of their scienter allegations together with broad statements regarding “Defendants” or the “Individual Defendants.” They allege, for example, that “Defendants also knew or recklessly disregarded that the misleading statements and omissions ... would adversely affect the integrity of the market for the" } ]

[ { "docid": "11295408", "title": "", "text": "concerning this cost was not false at the time it was made, it cannot serve as the basis for a securities fraud action. Scienter Since plaintiff has sufficiently alleged some false statements of material fact, we must now determine whether he sufficiently pleads defendants’ scienter. For § 10(b) and Rule 10b-5 claims, scienter is a “mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); see Foss v. Bear, Stearns & Co., Inc., 394 F.3d 540, 541 (7th Cir.2005)(“There is no violation of § 10(b) without fraud and no fraud without deceit.”). While Hochfelder did not resolve whether reckless behavior created civil liability under § 10(b), the Seventh Circuit has since held that reckless disregard for the truth establishes intent for purposes of the statute. Sundstrand Corp. v. Sun Chem. Corp., 553 F.2d 1033, 1044-45 (7th Cir.1977); Chu, 100 F.Supp.2d at 822-23. Recklessness is highly unreasonable conduct beyond simple or even inexcusable negligence that represents an extreme departure from the standards of ordinary care, such that its danger is either known to the defendant or so obvious that the defendant must have been aware of it. Sundstrand Corp., 553 F.2d at 1045; Chu, 100 F.Supp.2d at 823 (quoting Rehm v. Eagle Finance Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997)). The PSLRA raised the bar for pleading scienter in securities fraud actions, no matter whether plaintiff alleges that a defendant acted knowingly or recklessly. Facts that afford a belief that plaintiff could prove scienter do not suffice. See Chu, 100 F.Supp.2d at 823. The complaint must plead facts that give rise to a strong inference that defendants acted with scienter. 15 U.S.C. § 78u-4(b)(2). As the Seventh Circuit has not addressed what constitutes a strong inference of scienter, district courts have looked outside this circuit for guidance. A standard adopted by the Second Circuit is most often cited. See Riggs Partners, LLC. v. Hub Group, Inc., 2002 WL 31415721 at *4 (N.D.Ill.2002); Lindelow v. Hill, 2001 WL 830956 at *6 (N.D.Ill.2001); Rehm, 954 F.Supp. 1246," }, { "docid": "4501432", "title": "", "text": "drafting or publication of Baan’s misleading statements. Plaintiffs did not adequately plead a violation of Section 10(b) by Va-nenburg. B. Scienter Scienter is a required element that must be plead in alleging a violation of § 10(b). The PSLRA does not refine the definition of scienter any further, but it does require plaintiffs to plead with particularity “facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). There is no consensus among the courts as to how a “strong inference” of scienter may be established, and our Circuit has yet to rule on the issue. Plaintiffs argue that they may satisfy the scienter requirement by alleging facts to show either (1) that the defendants had motive and opportunity to commit fraud or (2) strong circumstantial evidence of conscious misbehavior or recklessness. See Press v. Chemical Invest. Services Corp., 166 F.3d 529, 538 (2d Cir.1999) (approving both the recklessness test and the motive and opportunity test); In re Advanta Corp. Securities Litigation, 180 F.3d 525, 534-35 (3d Cir.1999) (same); Rehm v. Eagle Finance Corp., 954 F.Supp. 1246, 1252-53 (N.D.Ill.1997) (same); Williams v. WMX Technologies, Inc. 112 F.3d 175, 178 (5th Cir.1997) (noting, in dicta, that the PSLRA adopted the Second Circuit standard); see also Greebel v. FTP Software, Inc., 194 F.3d 185, 196-98 (1st Cir.1999) (rejecting the Second Circuit’s approach in favor of one closer to that of the Sixth Circuit (rejecting the motive and opportunity test), but finding that facts showing motive and opportunity can sometimes support scienter). i. Motive and Opportunity Defendants argue that under the PSLRA, a showing of motive and opportunity is insufficient to support scienter. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1285 (11th Cir.1999); In re Comshare, 183 F.3d at 551; In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 979 (9th Cir.1999). Even assuming that a showing of motive and opportunity would satisfy the PLSRA’s requirement for pleading scienter, plaintiffs have not alleged facts sufficient to show motive and opportunity. Plaintiffs argue that stock sales by Grabe, Hodgson, and Johnson" }, { "docid": "343450", "title": "", "text": "Leasing Corp., 2002 WL 31664480 at *8. Thus, this Court has held that a plaintiff may use “motive and opportunity” or “circumstantial evidence” to establish scienter under the PSLRA, so long as Plaintiffs’ allegations support a strong inference that the defendant acted recklessly or knowingly. Id. Plaintiffs’ allegations include motive, opportunity, and circumstantial evidence of intent, but they lump those allegations together generally as to “MJ Capital Management, Allamian, Manning, Paszkiet and/or the ZCM Counter-defendants.” {See, e.g., R. 15-1, Pis.’ First Am. Compl. ¶¶ 70-72.) Thus, Plaintiffs do not specify conscious misbehavior or recklessness on the part of the primary violators. These allegations do not give rise to a strong inference of scienter on the part of the primary violators and do not satisfy the heightened pleading requirements under the PSLRA. D. Statute of Limitations The one-year statute of limitations for federal securities claims begins to run when the potential plaintiff is put on “inquiry notice.” Fujisawa Pharm. Co. v. Kapoor, 115 F.3d 1332, 1334 (7th Cir.1997). “Inquiry notice starts the running of the statute of limitations when the victim of the alleged fraud became aware of the facts that would have led a reasonable person to investigate whether he might have a claim.” Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609 (7th Cir.1995) (quotation omitted). “However, more than ‘merely suspicious circumstances’ must exist; instead the plaintiff must learn of a circumstance that places him ‘in possession of, or with ready access to, the essential facts that he needs in order to be able to sue.’ ” Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 670 (7th Cir.1998) (quoting Fujisawa Pharm., 115 F.3d at 1337). Defendants argue that each of the Plaintiffs was on inquiry notice prior to July 2000 based on various information the Plaintiffs received through documents and/or conversations. Defendants’ statute of limitations argument is based primarily not on allegations from the First Amended Complaint but documents attached to a declaration by Defendants’ counsel. These documents are not appropriately before the Court on this motion to dismiss. See Albany Bank & Trust Co. v. Exxon" }, { "docid": "7269924", "title": "", "text": "as ‘motive and opportunity’ ”). As noted by the Sixth Circuit in Comshare, “the bare pleading of motive and opportunity does not, standing alone, constitute the pleading of a strong inference of scien-ter;” however, “facts regarding motive and opportunity may be ‘relevant to pleading circumstances from which a strong inference of fraudulent scienter may be inferred,’ and may, on occasion, rise to the level of creating a strong inference of reckless or knowing conduct.” Comshare, 183 F.3d at 551 (quoting In re Baesa Securities Litigation, 969 F.Supp. 238, 242 (S.D.N.Y.1997)). Thus, the PSLRA’s focus is on whether plaintiffs have plead with particularity facts establishing a “strong inference” that the defendants acted with scienter. The types of facts they choose to use in this pursuit — for instance, motive and opportunity facts — are of no consequence as long as those facts establish the strong inference of scienter. But the question remains, what constitutes “scienter” under § 10(b)? Scienter under § 10(b) is either the “intent to deceive, manipulate or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) or the “reckless disregard for the truth of the material asserted,” whether by commission or omission. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1044 (7th Cir.1977). See also SEC v. Jakubowski, 150 F.3d 675, 681 (7th Cir.1998) (“Reckless disregard of the truth counts as intent” for purposes of scienter). “Reckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Finance Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997) (quoting Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47 (2d Cir.1978)). Under the PSLRA, plaintiffs must allege particular facts giving rise to a strong inference that defendants acted, at a minimum, recklessly. The court will examine plaintiffs’ allegations of scienter as to each of the defendant groups. B. Individual Defendants Plaintiffs allege" }, { "docid": "1599680", "title": "", "text": "v. Cendant Corp., 142 F.Supp.2d 589, 620 (D.N.J.2001) (concluding that the PSLRA abolished the group pleading doctrine); Marra v. Tel-Save Holdings, Inc., 1999 WL 317103, at *5 (E.D.Pa. May 18, 1999); In re Home Health Corp. of Am. Securities Litig., 1999 WL 79057, at *21 (E.D.Pa.Jan.29, 1999). In rejecting group pleading under the PSLRA, courts have reasoned that the requirement under the PSLRA that scienter be pled with particularity as to each defendant would be rendered meaningless should group pleading survive. See P. Schoenfeld, 142 F.Supp.2d at 620; Marra, 1999 WL 317103, at *5. Moreover, because the PSLRA allows the plaintiff to assert upon information and belief that a statement or omission is misleading, provided the complaint states with particularity all facts upon which this belief is formed, the plaintiff need not resort to group pleading. See id. The court finds this reasoning sound and persuasive, and will, therefore, adopt the approach of courts rejecting the viability of group pleading under the PSLRA. Accordingly, to the extent that Count I of the complaint relies on group pleading, it must be dismissed. 2. Scienter Additionally, Count I must be dismissed for failing to plead scienter with the requisite specificity. Scienter is an element of a Section 14(e) claim. See Clearfield Bank & Trust Co. v. Omega Fin. Corp., 65 F.Supp.2d 325, 342-343 (E.D.Pa.1999); Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 961 (2d Cir.1987). The Third Circuit has defined scienter “as a mental state embracing intent to deceive, manipulate, or defraud.” In re Phillips Petroleum Securities Litig., 881 F.2d 1236, 1244 (3d Cir.1989) (citations omitted). The PSLRA requires plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). To plead scienter under the PSLRA, the plaintiffs must allege facts “establishing a motive and an opportunity to commit fraud, or ... facts that constitute circumstantial evidence of either reckless or conscious behavior.” In re Advanta Corp. Securities Litig., 180 F.3d 525, 534-535 (3d Cir.1999). “When a complaint fails to plead scienter in conformity with the" }, { "docid": "21718966", "title": "", "text": "teleconference is based on preliminary financial results which are subject to further review and adjustment and contain forward-looking statements that involve risks and uncertainties. Actual results may differ from the results discussed in the forward-looking statements. Factors that might cause such a difference include, but are not limited to risks associated with introducing new products, entering new markets, availability of resources, competitive response, and the economic conditions in the telecommunications industry.” (Id.) He further noted that “the Company undertakes no obligation to revise or update these forward-looking statement to reflect the occurrence of unanticipated events.” (Id.) Tellabs’ 10-K for fiscal year 2000 contained even more detailed safe harbor language. (Id.) The language accompanying these forward-looking statements clearly falls within the PSLRA’s safe harbor for projections. Contrary to Plaintiffs’ assertions, this language is not vague or boilerplate. It specifically identifies risks that could affect the projections. Accordingly, the projections are protected by the PSLRA’s safe harbor. B. Scienter Defendants also contend that Plaintiffs have failed to plead scienter with particularity for both its alleged misrepresentations and projections. Rule 9(b) does “not require ‘particularity’ with respect to the defendants’ mental state.” DiLeo, 901 F.2d at 629. The PSLRA, however, does impose heightened pleading requirements for scienter. Specifically, the PSLRA requires that Plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Under Section 10(b), scienter is either “the intent to deceive, manipulate or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), or the “reckless disregard for the truth of the material asserted.” S.E.C. v. Jakubowski 150 F.3d 675, 681 (7th Cir. 1998). “Reckless conduct is, at least, conduct which is highly unreasonable and which represents an extreme departure from standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997). The Seventh Circuit has not yet addressed the heightened pleading" }, { "docid": "17240806", "title": "", "text": "be consummated. Statements regarding the safety record of ValuJet also are not protected as forward-looking statements. C. SCIENTER The Supreme Court has defined scienter as “a mental state embracing intent to deceive, manipulate or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, 96 S.Ct. 1375, 1380, 47 L.Ed.2d 668 (1976). With regard to scienter, the PSLRA requires that plaintiffs must set forth as to each statement or omission particular facts that give rise to a strong inference that the defendants acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2). The application of the PSLRA’s standard has produced considerable debate in the district courts. Before the enactment of the PSLRA, the Second Circuit held that a plaintiff could properly plead scienter by alleging (1) facts constituting strong circumstantial evidence of reckless or conscious misbehavior, or (2) facts showing that the defendants had both motive and opportunity to commit fraud. Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Since the PSLRA’s enactment, several courts have held that the PSLRA’s requirements for pleading scienter is consistent with both aspects of the Second Circuit’s rule. Fugman v. Aprogenex Inc., 961 F.Supp. 1190, 1195 (N.D.Ill.1997); Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1250-53 (N.D.Ill.1997); Marksman Partners, L.P. v. Chantal Pharmaceutical, 927 F.Supp. 1297, 1311 (N.D.Cal.1996). Conversely, other courts have concluded that Congress intended to eliminate the “motive and opportunity” prong of the Second Circuit’s pleading standard and that the plaintiff must set forth specific facts that “create a strong inference of knowing misrepresentation on the part of the defendants.” Norwood Venture Corp. v. Converse Inc., 959 F.Supp. 205, 208 (S.D.N.Y.1997) (quoting In re Silicon Graphics, Inc. Securities Litigation, 970 F.Supp. 746, 757 (N.D.Cal.1997)). Thus, the courts in Norwood and Silicon hold that the PSLRA intended a higher pleading requirement than the Second Circuit by not codifying its motive, opportunity and recklessness standards. The courts adopting the Second Circuit’s scienter requirement and those imposing a more stringent standard have both cited the PSLRA’s contradictory legislative history in support of the respective positions. Compare Rehm, 954 F.Supp. at 1250-53" }, { "docid": "343449", "title": "", "text": "inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The Seventh Circuit has not yet addressed the heightened pleading requirements for scienter under the PSLRA. But as this Court recently noted in Wafra Leasing Corp. v. Prime Capital Corp., 247 F.Supp.2d 987 (N.D.Ill.2002), the Second Circuit has articulated a standard for scienter allegations that several other courts in this District have adopted. Under this Second Circuit standard, a plaintiff must allege either: (1) facts showing that the defendants had both motive and opportunity to commit fraud, or (2) facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Wafra Leasing Corp., 247 F.Supp.2d at 997. See also Press v. Chemical Investment Serv. Corp., 166 F.3d 529, 538 (2nd Cir.1999) (citations and quotations omitted); Riggs Partners, LLC. v. Hub Group, Inc., No. 02 C 1188, 2002 WL 31415721, at *4 (N.D.Ill. Oct. 25, 2002); Lindelow, 2001 WL 830956, at *6. This Court, however, has declined to follow the Second Circuit’s standard given the plain language of the PSLRA. See Wafra Leasing Corp., 2002 WL 31664480 at *8. Thus, this Court has held that a plaintiff may use “motive and opportunity” or “circumstantial evidence” to establish scienter under the PSLRA, so long as Plaintiffs’ allegations support a strong inference that the defendant acted recklessly or knowingly. Id. Plaintiffs’ allegations include motive, opportunity, and circumstantial evidence of intent, but they lump those allegations together generally as to “MJ Capital Management, Allamian, Manning, Paszkiet and/or the ZCM Counter-defendants.” {See, e.g., R. 15-1, Pis.’ First Am. Compl. ¶¶ 70-72.) Thus, Plaintiffs do not specify conscious misbehavior or recklessness on the part of the primary violators. These allegations do not give rise to a strong inference of scienter on the part of the primary violators and do not satisfy the heightened pleading requirements under the PSLRA. D. Statute of Limitations The one-year statute of limitations for federal securities claims begins to run when the potential plaintiff is put on “inquiry notice.” Fujisawa Pharm. Co. v. Kapoor, 115 F.3d 1332, 1334 (7th Cir.1997). “Inquiry notice starts the running of the statute" }, { "docid": "1599681", "title": "", "text": "group pleading, it must be dismissed. 2. Scienter Additionally, Count I must be dismissed for failing to plead scienter with the requisite specificity. Scienter is an element of a Section 14(e) claim. See Clearfield Bank & Trust Co. v. Omega Fin. Corp., 65 F.Supp.2d 325, 342-343 (E.D.Pa.1999); Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 961 (2d Cir.1987). The Third Circuit has defined scienter “as a mental state embracing intent to deceive, manipulate, or defraud.” In re Phillips Petroleum Securities Litig., 881 F.2d 1236, 1244 (3d Cir.1989) (citations omitted). The PSLRA requires plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). To plead scienter under the PSLRA, the plaintiffs must allege facts “establishing a motive and an opportunity to commit fraud, or ... facts that constitute circumstantial evidence of either reckless or conscious behavior.” In re Advanta Corp. Securities Litig., 180 F.3d 525, 534-535 (3d Cir.1999). “When a complaint fails to plead scienter in conformity with the PSLRA, dismissal is required.” Mortensen v. AmeriCredit Corp., 123 F.Supp.2d 1018, 1023 (N.D.Tex.2000); accord Advanta, 180 F.3d at 531. a. Motive The Third Circuit has cautioned that: [permitting blanket assertions of motive and opportunity to serve as a basis for liability under the Exchange Act would undermine the more rigorous pleading standard Congress has established. After the [PSLRA], catch-all allegations that defendants stood to benefit from wrongdoing and had the opportunity to implement a fraudulent scheme are no longer sufficient, because they do not state facts with particularity or give rise to a strong inference of scienter. Advanta, 180 F.3d at 535. Moreover, it is not enough to allege that the defendant was acting in his or her own economic self-interest. See Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1130 (2d Cir.1994). To the contrary, courts assume that the defendant would act in his or her economic self-interest. See id.; see also Abbell Credit Corp. v. Bank of Am. Corp., 2002 WL 335320, at *5 (N.D.Ill. Mar.01, 2002). Rather, “plaintiffs must assert a concrete" }, { "docid": "11295409", "title": "", "text": "from the standards of ordinary care, such that its danger is either known to the defendant or so obvious that the defendant must have been aware of it. Sundstrand Corp., 553 F.2d at 1045; Chu, 100 F.Supp.2d at 823 (quoting Rehm v. Eagle Finance Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997)). The PSLRA raised the bar for pleading scienter in securities fraud actions, no matter whether plaintiff alleges that a defendant acted knowingly or recklessly. Facts that afford a belief that plaintiff could prove scienter do not suffice. See Chu, 100 F.Supp.2d at 823. The complaint must plead facts that give rise to a strong inference that defendants acted with scienter. 15 U.S.C. § 78u-4(b)(2). As the Seventh Circuit has not addressed what constitutes a strong inference of scienter, district courts have looked outside this circuit for guidance. A standard adopted by the Second Circuit is most often cited. See Riggs Partners, LLC. v. Hub Group, Inc., 2002 WL 31415721 at *4 (N.D.Ill.2002); Lindelow v. Hill, 2001 WL 830956 at *6 (N.D.Ill.2001); Rehm, 954 F.Supp. 1246, 1255 (N.D.Ill.1997). Under the Second Circuit’s standard, in order to establish a strong inference of scienter plaintiff must allege 1) facts that show defendants had a motive and opportunity to commit fraud, or 2) facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Some courts have emphasized that while the Second Circuit’s standard is instructive, the PSLRA only requires a strong inference of scienter, not specific types of facts that create the inference. Chu, 100 F.Supp.2d at 823; Wafra Leasing Corp.1999-A-1 v. Prime Capital Corp., 247 F.Supp.2d 987, 997 (N.D.Ill.2002). Whether the plaintiff alleges motive, opportunity or circumstantial evidence, our inquiry is whether he has pleaded facts to create a strong inference that defendants knowingly or recklessly misled investors. The strength of an inference depends on how closely it follows from a fact. See Helwig v. Vencor, Inc., 251 F.3d 540, 553 (6th Cir.2001). Thus, to satisfy the PSLRA, fraudulent intent must be the most reasonable of competing inferences to follow from" }, { "docid": "343426", "title": "", "text": "Three alleges that Defendants aided and abetted a commodity pool fraud in violation of the Commodity Exchange Act, 7 U.S.C. §§ 60 and 25(a)(1). Count Four alleges that Defendants breached their fiduciary duties. Count Five alleges that Defendants participated in or induced a breach of fiduciary duties owed to Plaintiffs. Count Six is a claim for intentional interference with contractual relations, and Count Seven is based on negligent interference with contracts. Finally, Count Eight alleges that Defendants aided and abetted common law fraud and deceit. The following are plaintiffs in this case: 766347 Ontario Ltd., (“Ontario”), The James F. Boughner Foundation (“Bough-ner Foundation”), Ellen Frymire (“Frym-ire”) and Salateen International Ltd. (“Salateen”). Ontario and Boughner Foundation are Canadian corporations. James Boughner is the principal officer of both of these corporations. Frymire is a citizen of the State of Illinois and a resident of the Bahamas. James Cone is Frymire’s husband. Salateen is a Bahamian corporation with Cone as one of its principal officers. Each Plaintiff is a limited partner that invested in the Asset Allocation Fund, L.P. (“Asset Allocation”). Defendants Zurich Capital Markets Inc. (“Zurich”), ZCM Matched Funding Corp. (“ZCM MFC”), ZCM Asset Holding Company LLC (“ZCM Asset”) are Delaware corporations. Defendant ZCM Asset Holding Company (Bermuda) Ltd. (“ZCM Bermuda”) is a Bahamian corporation. ZCM MFC, ZCM Asset, ZCM Bermuda are wholly owned subsidiaries of Zurich, and ZCM Asset Holding Company is an affiliate of Zurich. Defendants M.J. Diversified Fund, L.P. (“MJD”) and M.J. Financial Arbitrage, L.P. (“MJFA”) are dissolved limited partnerships. (Collectively, all of the Defendants are referred to as “ZCM” or the “Defendants”). A. The Asset Allocation Limited Partnership Asset Allocation is a limited partnership with Martin James Capital Management, Inc. (“MJCM”) as its general partner. Martin James Allamian owned and operated MJCM, and James Manning and Robert Paszkiet were its officers and employees. Asset Allocation traded commodity futures contracts and other securities. Asset Allocation sold limited partnership interests to each of the Plaintiffs. It used various documents in selling and marketing these interests, including a Prospectus or Confidential Private Placement Memorandum (“PPM”) and a limited partnership agreement. Plaintiffs" }, { "docid": "343448", "title": "", "text": "73.) Further, Plaintiffs allege they were in fact damaged by the alleged misstatements and omissions. (R. 15-1, Pis.’ First Am. Compl. ¶ 74.) These allegations satisfy both the transaction and loss causation elements. See Caremark, 113 F.3d at 648-49. 3. Scienter Defendants argue that Plaintiffs have failed to allege scienter on the part of the primary violators — MJCM and Asset Allocation. Defendants argue that even if Plaintiffs have alleged scienter, those allegations fail to satisfy Rule 9(b)’s particularity requirements and the PSLRA’s heightened pleading requirements. Contrary to Defendants’ suggestion, Rule 9(b) does “not require ‘particularity’ with respect to the defendants’ mental state.” DiLeo v. Ernst & Young, 901 F.2d 624, 629 (7th Cir.1990). Instead, the allegations in the complaint need only “afford a basis for believing that the plaintiff!] could prove scienter.” Id.See also Caremark, Inc. v. Coram Healthcare Corp., 113 F.3d 645, 650 n. 7 (7th Cir.1997). The PSLRA, however, does impose heightened pleading requirements for scienter. Specifically, the PSLRA requires that a plaintiff “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The Seventh Circuit has not yet addressed the heightened pleading requirements for scienter under the PSLRA. But as this Court recently noted in Wafra Leasing Corp. v. Prime Capital Corp., 247 F.Supp.2d 987 (N.D.Ill.2002), the Second Circuit has articulated a standard for scienter allegations that several other courts in this District have adopted. Under this Second Circuit standard, a plaintiff must allege either: (1) facts showing that the defendants had both motive and opportunity to commit fraud, or (2) facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Wafra Leasing Corp., 247 F.Supp.2d at 997. See also Press v. Chemical Investment Serv. Corp., 166 F.3d 529, 538 (2nd Cir.1999) (citations and quotations omitted); Riggs Partners, LLC. v. Hub Group, Inc., No. 02 C 1188, 2002 WL 31415721, at *4 (N.D.Ill. Oct. 25, 2002); Lindelow, 2001 WL 830956, at *6. This Court, however, has declined to follow the Second Circuit’s standard given the plain language of the PSLRA. See Wafra" }, { "docid": "343433", "title": "", "text": "he relied on representations made by agents and employees of MJCM, including Allamian and Manning. (Id. II59.) None of the MJCM agents or employees informed Waldock or Cone of the nature of Asset Allocations’ relationship with the ZCM Defendants. (Id. ¶¶ 56, 60). In addition, in at least June and October 2000, Plaintiffs were informed that no more than 15% of the assets of Asset Allocation were invested with any one trading advisor. (Id. ¶ 61.) In fact, at the time these representations were made, “(1) ZCM owned and controlled 100% of Asset Allocations investments, and (2) substantially more than 15% of the assets held by ZCM had been invested in PinnFund and its related entities through a series of pyramiding investments using either defendants MJD or MJFA or both.” (Id. ¶ 62.) Finally, Plaintiffs allege that the representations in the limited partnership disclosure documents and limited partnership agreement that each limited partner could redeem all or part of the units that partner held as of the end of any month with 30 days prior notice were false. Plaintiffs argue that ZCM controlled all assets held by Asset Allocation and that the Swap Agreement could only terminated quarterly. (R. 15-1, Pis.’ First Am. Compl. ¶ 64.) Plaintiffs assert that no one informed them of ZCM’s control prior to investing in the limited partnership. ANALYSIS I. LEGAL STANDARD The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint, not the merits of the case. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.1989); Majchrowski v. Norwest Mortgage, Inc., 6 F.Supp.2d 946, 952 (N.D.Ill.1998). When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court considers “whether relief is possible under [any] set of facts that could be established consistent with [the] allegations.” Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992). The Court views all the facts alleged in the complaint, as well as any reasonable inferences drawn from those facts, in the light most favorable to the plaintiff. Stachon" }, { "docid": "13914307", "title": "", "text": "937-38; In re Spyglass Inc. Sec. Litig., No. 99 C 512, 1999 WL 543197, at *7 (N.D.Ill. July 21, 1999). At a minimum, recklessness requires “conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997). As applied to outside auditors, recklessness means that “the accounting firm practices amounted to no audit at all, or to an egregious refusal to see the obvious, or to investigate the doubtful, or that the accounting judgments which were made were such that no reasonable accountant would have made the same decisions if confronted with the same facts.” In re First Merchants, 1998 WL 781118, at *10 (N.D.Ill. Nov.4, 1998). (citing SEC v. Price Waterhouse, 797 F.Supp. 1217, 1240 (S.D.N.Y.1992)); see also Rehm, 954 F.Supp. at 1255. While not changing the substantive requirements, the PSLRA did heighten the pleading requirements of the Exchange Act’s scienter requirement. A post-PSLRA securities fraud plaintiff must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The PSLRA does not elaborate on what facts or factual situations will give rise to “a strong inference” of intent, and the Seventh Circuit has not yet addressed the PSLRA pleading standard. As a threshold matter, this Court notes that the language of the PSLRA imposes a stricter pleading standard than that imposed by Rule 9(b). The Rule 9(b) standard required securities fraud plaintiffs to allege facts and circumstances which gave rise to “a basis for believing that plaintiffs could prove scienter.” Di-Leo, 901 F.2d at 628-29. Under the PSLRA, securities fraud plaintiffs must allege facts that afford “a strong inference” for believing that plaintiffs could prove scienter. As to the particular contours of the factual pleading requirements, there is remarkable discord among the Circuit Courts. Several courts in this district have characterized the PSLRA as effectively" }, { "docid": "8291547", "title": "", "text": "of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. See Heller v. Goldin Restructuring Fund, L.P., 590 F.Supp.2d 603, 613 (S.D.N.Y.2008). In this case, Defendants argue that Plaintiff has failed to plead sufficiently two of the necessary elements: scienter and materiality. As the Court finds that Plaintiff has failed to plead scienter adequately, the Court does not consider the issue of materiality. Under the PSLRA, in order to plead scienter adequately and state a claim under section 10(b) and Rule 10b-5, it is necessary to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). “The requisite state of mind in a Rule 10b-5 action is ‘an intent to deceive, manipulate or defraud.’ ” Gemino v. Citizens Utils. Co., 228 F.3d 154, 168 (2d Cir.2000) (quoting Ernst & Ernst, 425 U.S. at 193 n. 12, 96 S.Ct. 1375). Second Circuit case law, which predates the passage of the PSLRA, provides that “[t]he requisite ‘strong inference’ of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). In Kalnit v. Eichler, 264 F.3d 131 (2d Cir.2001), the Court of Ap peals explicitly noted that “both options for demonstrating scienter, either with motive and opportunity allegations or with allegations constituting strong circumstantial evidence of conscious misbehavior or recklessness, survive the PSLRA.” Id. at 138-39; see also, e.g., Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290-91 (2d Cir. 2006) (quoting Shields, 25 F.3d at 1128). The Supreme Court, in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), has interpreted the PSLRA’s “strong inference” requirement, and has held that, “in determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.”" }, { "docid": "21177918", "title": "", "text": "lob-5, the plaintiff must allege that the defendants, in connection with the purchase or sale of securities, made a materially false statement or omitted a material fact, with scienter, and that the plaintiffs reliance on the defendants’ action caused injury to the plaintiff. Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000); see also Silsby, 17 F.Supp.3d at 358. The defendants do not dispute that there were material misstatements or omissions of fact. The defendants move to dismiss the asserted violations of Section 10(b) and Rule 10b-5 on the grounds that the plaintiff has failed to allege sufficient facts to show loss causation and scienter. A. The defendants argue that this action should be dismissed because the plaintiff has not alleged facts sufficient to support a strong inference of scienter. The scienter required to support a securities fraud claim can be “intent to deceive, manipulate, or defraud, or at least knowing misconduct.” SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1467 (2d Cir.1996) (internal citations omitted). The PSLRA requires that a complaint alleging securities fraud “state with particularity facts giving rise to a strong inference that the defendants] acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Scien-ter may be inferred from (i) facts showing that a defendant had “both motive and opportunity to commit the fraud,” or (ii) facts that constitute “strong circumstantial evidence of conscious misbehavior or recklessness.” ATSI, 493 F.3d at 99; see also City of Roseville Emps.’ Ret. Sys. v. EnergySolutions, Inc., 814 F.Supp.2d 395, 418-19 (S.D.N.Y.2011). In order to plead scienter adequately, the plaintiffs must allege facts supporting a strong inference with respect to each defendant. See Plumbers & Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron Inc., 741 F.Supp.2d 474, 488 (S.D.N.Y.2010). “[I]n determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A complaint sufficiently alleges scienter when “a reasonable person would deem the inference" }, { "docid": "5244295", "title": "", "text": "statements, the law is concerned with fraud, not the inaccuracy of statements such as these; and the factual support provided by the plaintiffs for each of their allegations of fraud fails to satisfy the particularity and sufficiency requirements of Rule 9(b) and the PSLRA. But even if these pleading requirements had been satisfied, plaintiffs would not make out a case for securities fraud unless they adequately pleaded scienter, a question to which I now turn. B. Scienter 1. Legal Standard To state a claim for securities fraud under § 10(b) and Rule 10b-5, the complaint must allege that the defendants acted with scienter — “an intent to deceive, manipulate, or defraud.” Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001). To plead scienter under Rule 9(b) and the PSLRA, the complaint must allege facts that give rise to a strong inference of fraudulent intent. Though Rule 9(b) states that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally,” this provision “must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Rather, the Second Circuit has explained: “[T]o serve the purposes of Rule 9(b), we require plaintiffs to allege facts that give rise to a strong inference of fraudulent intent.” Id. The PSLRA essentially adopted the Second Circuit’s “strong inference” standard for securities fraud cases. Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000). The statute requires that “the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The requisite state of mind in a securities fraud case is scienter, or fraudulent intent. The Second Circuit has established that a strong inference of fraudulent intent “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or" }, { "docid": "5397534", "title": "", "text": "the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997) (quoting Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47 (2d Cir.1978) (internal alteration and quotation marks omitted)). “An egregious refusal to see the obvious, or to investigate the doubtful, may in some cases give rise to an inference of ... recklessness.” Id. (ellipses in original; internal quotation marks omitted) (quoting Goldman v. McMahan, Brafman, Morgan & Co., 706 F.Supp. 256, 259 (S.D.N.Y.1989)). The PSLRA does not elaborate on what facts or factual situations will give rise to “a strong inference” of intent to deceive or reckless disregard for the truth, and the Seventh Circuit has not yet addressed the PSLRA pleading standard. See Chu v. Sabratek Corp., 100 F.Supp.2d 815, 822 (N.D.Ill.2000). Some courts have held that the requisite strong inference under the PSLRA may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Rehm, 954 F.Supp. at 1253 (adopting Second Circuit’s Rule 9(b) standard as expressed in Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). The central requirement under the PSLRA however, is not that specific types of facts must be alleged (for instance, facts that imply motive and opportunity), but rather that the facts that are alleged support a strong inference that the defendant acted recklessly or knowingly. Danis v. USN Communications, Inc., 73 F.Supp.2d 923, 938 (N.D.Ill.1999). III. DISCUSSION A. Statements Attributable to PwC Before addressing the question of whether plaintiffs have adequately pleaded that PwC knowingly made misstatements, I need to determine what statements may be attributed to PwC for purposes of § 10(b). Without conceding that it made misstatements, PwC agrees that it would be responsible for misstatements in its audit report. PwC, however, disputes plaintiffs’ claim that it may be held liable for misstatements in the November 20, 1997 press" }, { "docid": "21718967", "title": "", "text": "projections. Rule 9(b) does “not require ‘particularity’ with respect to the defendants’ mental state.” DiLeo, 901 F.2d at 629. The PSLRA, however, does impose heightened pleading requirements for scienter. Specifically, the PSLRA requires that Plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Under Section 10(b), scienter is either “the intent to deceive, manipulate or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), or the “reckless disregard for the truth of the material asserted.” S.E.C. v. Jakubowski 150 F.3d 675, 681 (7th Cir. 1998). “Reckless conduct is, at least, conduct which is highly unreasonable and which represents an extreme departure from standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997). The Seventh Circuit has not yet addressed the heightened pleading requirements for scienter under the PSLRA. But as this Court recently noted in Wafra Leasing Corp. v. Prime Capital Corp., 247 F.Supp.2d 987 (N.D.Ill. 2002), the Second Circuit articulated a standard for scienter allegations that several other courts in this District have adopted. Under this Second Circuit standard, a plaintiff is required to allege either: (1) facts showing that the defendants had both motive and opportunity to commit fraud, or (2) facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Id. at 997; see also Press v. Chemical Investment Sews. Corp., 166 F.3d 529, 538 (2d Cir. 1999) (citations and quotations omitted). The Court rejects the Second Circuit standard because it is inconsistent with the plain language of the PSLRA. See Wafra Leasing, 247 F.Supp.2d at 997. Instead, Plaintiffs may use “motive and opportunity” or “circumstantial evidence” to establish scienter under the PSLRA, as long as Plaintiffs’ allegations support a strong inference that Defendants acted recklessly or knowingly. Id. 1. Group pleading and scienter With respect to the alleged material misrepresentations or omissions, Plaintiffs" }, { "docid": "5397533", "title": "", "text": "purchase or sale of any security. 17 C.F.R. § 240.10b-5. To state a valid Rule 10b-5 claim a plaintiff must allege that the defendant: (1) made a misstatement or omission (2) of material fact (3) with scien-ter, (4) in connection with the purchase or sale of securities, (5) upon which the plaintiff relied, and (6) that reliance proximately caused the plaintiffs injury. Stransky v. Cummins Engine Co., 51 F.3d 1329, 1331 (7th Cir.1995). Scienter is a “mental state embracing intent to deceive, manipulate or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). The Seventh Circuit has interpreted Hochfelder as establishing that “reckless disregard of the truth counts as intent” for the purpose of the 10b-5 scienter requirement. SEC v. Jakuboivski, 150 F.3d 675, 681 (7th Cir.1998) (citing Sundstrand Corp. v. Sun Chem. Corp., 553 F.2d 1033, 1044-45 (7th Cir.1977)). “Reckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rehm v. Eagle Fin. Corp., 954 F.Supp. 1246, 1255 (N.D.Ill.1997) (quoting Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47 (2d Cir.1978) (internal alteration and quotation marks omitted)). “An egregious refusal to see the obvious, or to investigate the doubtful, may in some cases give rise to an inference of ... recklessness.” Id. (ellipses in original; internal quotation marks omitted) (quoting Goldman v. McMahan, Brafman, Morgan & Co., 706 F.Supp. 256, 259 (S.D.N.Y.1989)). The PSLRA does not elaborate on what facts or factual situations will give rise to “a strong inference” of intent to deceive or reckless disregard for the truth, and the Seventh Circuit has not yet addressed the PSLRA pleading standard. See Chu v. Sabratek Corp., 100 F.Supp.2d 815, 822 (N.D.Ill.2000). Some courts have held that the requisite strong inference under the PSLRA may be established either (a) by alleging facts to show that defendants had both motive" } ]

[ { "docid": "22963110", "title": "", "text": "1019, 82 L.Ed. 1461 (1938). The effect of Gideon has been to expand the right to counsel and there has also been a widening of the concept of the stage or stages when that right attaches.. We conclude that it is now the law that the right to counsel is present at every critical stage of the proceedings. It has definitely been settled that the right attaches at arraignment where, under state law, that stage is- critical as frequently it must be deemed to be. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); see Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). More recently, in 1964 the Supreme Court, in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, has held that, under certain circumstances, the right to counsel attaches at the interrogation level. These cases hold that where the right attaches any confession obtained in the absence of counsel must be suppressed independent of any issue of the voluntariness of the confession. In Massiah, the petitioner had already been indicted and was free on bail. Massiah’s alleged partner in crime agreed to cooperate with the police. By prearrangement with the police, a radio transmitter was installed in the partner’s automobile, thereby enabling the police to hear conversations conducted in the car. The partner talked with Massiah in the car and obtained incriminating statements from him. The Supreme Court held that the statements were inadmissible since the police practice offended Massiah’s right under the Sixth Amendment to the protection of counsel, relying on the concurring opinions in Spano, supra. The majority opinion treated this surreptitious- questioning as an interrogation by the police and held that at this point in the proceedings, i. e. post-indictment, Massiah had the right to the assistance of counsel. In Escobedo, the Supreme Court extended the right to" } ]

[ { "docid": "22989421", "title": "", "text": "present. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1; United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975). As Judge Bauer stated in United States v. Bastone, supra, 526 F.2d at 977: “A person is not entitled to warnings simply because an investigation has focused upon him. The test is not focus alone, but rather, focus plus custodial interrogation. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).” While it is clear the investigation had focused upon defendant Walker, his recorded conversations with Carpentier involved no confrontation with governmental authority in the context of a custodial interrogation calling for Miranda warnings. Consequently, we must reject Walker’s contention that the recordings violated his Fifth Amendment rights. Nor did the recordings violate Walker’s Sixth Amendment right to counsel. By its own terms, the Sixth Amendment affords the right of counsel “[i]n all criminal prosecutions.” For purely Sixth Amendment purposes, a defendant’s right to counsel attaches only at or after the time the adversary judicial proceeding has been initiated against him. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1971) (plurality opinion of Stewart, J.); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199,12 L.Ed.2d 246 (1964). See also: Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). One accused of a crime is said to be entitled to counsel at any “critical” stage of the prosecution. United States v. Wade, 388 U.S. 218, 236, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Walker’s right to counsel argument must fail for the simple reason that there had not yet been a “criminal prosecution” when his conversations with Carpentier were recorded. Nevertheless, Walker argues that at the time of the recorded" }, { "docid": "1309061", "title": "", "text": "of attorney-client. We think not. There was here no “surreptitious invasion by a government agent into the legal camp of the defense”, nor indeed any “government intrusion” — gross or otherwise — upon the confidential relationship between defendant and his counsel. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, 384 (1966). The Government engaged in no electronic surveillance, wire tapping, or deception. Compare Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953); Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (D.C.Cir. 1951). Certainly on the facts of this case there was no infringement of the Sixth Amendment right to counsel. Defendant was indicted on April 9, 1963. The district court refused to suppress evidence gathered and statements made to Internal Revenue Service agents at two conferences with the defendant in June and December 1961. Defendant asserts that his right not to be compelled to be a witness against himself was abridged because he was insufficiently warned. The defendant was accompanied by an attorney and his accountant (the same Milton Duke) when he first met with Internal Revenue agents. The uncontroverted testimony by Agent Gordon was that at this meeting he advised the defendant “that under the Constitution of the United States he may refuse to answer any question the answer to which will tend to incriminate him * * We think this more than sufficient. The defendant was not in custody. He attended the meetings under no compulsion save his own or counsel’s judgment that it was in his best interest to do so. The hearing on the motion for suppression of evidence and the trial in the present ease were conducted after the decision of the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758,12 L.Ed.2d 977 (1964), but prior to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because of the time sequence, Escobedo is more pertinent than Miranda. Johnson" }, { "docid": "23383052", "title": "", "text": "204-06, 84 S.Ct. 1199, 1201-1203, 12 L.Ed.2d 246 (1964). The distinction is a crucial one: building upon Judge Friendly’s influential dissent in United States v. Massimo, 432 F.2d 324 (2d Cir. 1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971), a number of cases in this court have made clear that waivers of Sixth Amendment rights must be measured by a “higher standard” than are waivers of Fifth Amendment rights. In Massimo, the defendant was interrogated in the absence of counsel after his arraignment and after he apparently had signed a written waiver. In contrast to the majority of the panel, Judge Friendly found it necessary to discuss the issue now before us. As he pointed out in his dissent: The interrogation of Massimo after arraignment raises serious questions not simply with respect to the Fifth Amendment under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which are cited by my brother Smith, but more importantly, with respect to the Sixth under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Since Massimo’s “criminal prosecution” had begun, the Sixth Amendment entitled him to counsel at any “critical stage,” Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), which inter rogation to elicit his guilt surely was, unless the protection was waived. Warnings by law enforcement officers and subsequent action by the accused that might suffice to comply with Fifth Amendment strictures against testimonial compulsion would not necessarily meet what I regard as the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached. . Indeed, in the case of a federal trial there would seem to be much ground for outlawing all statements resulting from post-arraignment or indictment interrogation (as distinguished from volunteered statements) in the absence of counsel when the questioning has no objective" }, { "docid": "11134614", "title": "", "text": "courts, for, the claims were presented on application for leave to appeal to the Court of Appeals and on motion to reargue in the Appellate Division. Regarding the merits of his Fifth and Sixth Amendment claims, appellant apparently recognizes that any direct reliance on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is misplaced because his trial, started in 1962 and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), held that Escobedo and Miranda apply only to trials commenced after June 22, 1964 and June 13, 1966 respectively, the dates of those decisions. Hence, appellant relies not on the holdings of Escobedo and Miranda but rather on their supposed radiations and asks that their principles be applied to a suspect who is not in custody. Such an extension of Escobedo and Miranda is unwarranted. Appellant also attempts to draw support from Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); however, Massiah had been indicted. Although the state may have had sufficient evidence to indict Molinas, that is immaterial. Compare Mr. Justice Stewart’s statement for the Court in Hoffa v. United States, 87 S.Ct. 408. “There is no constitutional right to be arrested.” While the Supreme Court recognized in Miranda that the self-incrimination clause of the Fifth Amendment protects only against compelled testimony, it presumed that all in custody interrogation involves elements of compulsion. Such a presumption cannot cover something said by a lawyer in the quiet of his own office. Cf. United States v. Bottone, 365 F.2d 389, 395 (2d Cir.), cert. denied 87 S.Ct. 514 (1966). Moreover, this was no case of Molinas’ testifying against himself; what he said was a crime itself. Also, it may be noted that the Massiah decision was handed down May 18, 1964 and because it involved issues similar to those in Escobedo and Miranda the Johnson date of decision rule may be expected to apply. Prior" }, { "docid": "22442512", "title": "", "text": "would have us extrapolate from certain decisions of the Supreme Court a rule that he had a right to consult counsel before being required to participate in the lineup, and to have the assistance of counsel during the lineup. He deduces from this rule a further result, that when these claimed rights are denied, no witness who was present at the lineup may give identifying testimony against him at his trial. We reject both the purported rule and the claimed result. The cases from which the purported rule is extracted fall into two categories. One group of cases calls the Sixth Amendment to the aid of the Fifth when the police seek information from the suspect who is in custody or on bail. Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The foregoing statement relates to the factual situations in these cases. The legal theories that they apply vary somewhat. In Massiah, an indicted federal defendant who had a lawyer was arraigned, pled not guilty, and was released on bail. A codefendant, posing as a friend but actually cooperating with the government, obtained incriminating statements from him. These were admitted at his trial. The Supreme Court reversed. Before the Supreme Court, Massiah relied upon the Fourth Amendment’s prohibition of unreasonable search and seizure, and upon the Fifth and Sixth Amendments. The Court said that it did not reach the Fourth Amendment claim. It did not say that it was relying only on the Sixth. It speaks of the right to counsel and says that a defendant is “as much entitled to such aid [of counsel] during that period” (from arraignment until the beginning of trial) “as at the trial itself.” (P. 205, 84 S.Ct. at p. 1202) Its holding is twice stated, first at p. 206, 84 S.Ct. at p. 1203: “We hold that the petitioner was denied the basic protections of that [Sixth" }, { "docid": "15642866", "title": "", "text": "dates of the cases would suggest why. The defendant in the present case, however, cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3d Cir. 1965), in support of his position that statements and information obtained when he was without benefit of counsel were in violation of his rights under the Sixth Amendment. Subsequent to the hearing and argument on the motion, the Supreme Court decided Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda rests the Sixth Amendment right to counsel squarely upon the Fifth Amendment right against self-incrimination and additionally \"establishes express conditions of warnings concerning constitutional rights and demonstration of intelligent waiver of such rights while the individual is in custody at the police station or otherwise deprived of his freedom of action. In absence of the observance of such conditions, all statements, whether intended or tending to be inculpatory or exculpatory, are inadmissible. Miranda v. State of Arizona, supra, pp. 476-477, 86 S.Ct. 1602. The impact of the Miranda decision upon Supreme Court cases relied upon in the decisions in Burdick and Wheeler was noted by Justice Harlan in his dissenting opinion (p. 509, 86 S.Ct. p. 1646): “ * * * [I]n practice and from time to time in principle, the Court has given ample recognition to society’s interest in suspect questioning as an instrument of law enforcement. * * * Of course the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having^been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U.S. 303 [32 S.Ct. 281]; Wilson v. United States, 162 U.S. 613 [16 S.Ct. 895].” While Miranda does not expressly overrule Powers or Wilson, it is evident that to the extent that Miranda (and Escobedo and Russo before it) adopts a doctrine which implicitly modifies the criteria of" }, { "docid": "470595", "title": "", "text": "Kaufer, supra. Appellant additionally claims that the introduction of the evidence from the Von Zamft conversation violated his fifth amendment rights since he was not informed that he was a target of the investigation and as a result he failed to realize that it might have been appropriate for him to exercise his right to silence and to counsel. This is the same claim as that made in regard to Agent Knox’s interview of appellant in 1967; however, this meeting occurred little more than a month prior to indictment. Although Von Zamft was an informer and was sent to talk with Di-Lorenzo for the purpose of drawing forth incriminating statements, this meeting did not violate appellant’s fifth amendment rights. Even if this were considered interrogation of appellant by Von Zamft, it was not custodial interrogation as in Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nor is there any indication of coercion in this case whatsoever, which was the basis for establishing the Miranda rules for in-custody interrogation. DiLorenzo was free to choose his own confidants, and he chose unwisely. This pre-indictment conversation in an attorney’s office with a fellow schemer does not come close to the circumstances in Escobedo or Miranda and does not require like treatment. Nothing in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Escobedo or Miranda remotely suggests that the government could not use evidence of statements obtained after the date a defendant asserts the government had sufficient grounds for taking him into custody and charging him. Hoffa v. United States, supra. Law enforcement officers are under no constitutional duty to call a halt to criminal investigations the moment they have the minimum evidence to establish probable cause. See id. Since this was not in-custody interrogation, and there was no coercion shown, the government was not required to inform appellant of his status as a target of the investigation and the failure of Von Zamft to do so did" }, { "docid": "7138117", "title": "", "text": "inferred that he followed him across as planned and knew that the nar cotics had been imported. The instructions on aiding and abetting were adequate in all respects. Many of the instructions asserted by appellants as instructions that should have been given are totally inapplicable to the case as presented. The court properly and fully instructed on all points raised in appellants’ brief and any difference in choice of words to express a given proposition did not amount to error. As a final ground for appeal appellants maintain that evidence was admitted in violation of the rules announced in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963). Miranda v. State of Arizona clearly has no application to this ease.DMiranda applies only to cases where the trial began after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719 at 733-734, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). A verdict was reached in this case on May 7, 1965. In Massiah v. United States, the defendant had retained counsel, pleaded not guilty and was free on bail. A government agent was permitted to place a radio transmitter in a car belonging to one of defendant’s confederates. In this way federal officers were able to overhear a conversation during which the defendant made incriminating statements. It was held that the defendant had been denied his right to counsel under the Sixth Amendment. Unlike Massiah the statements by Lewis to McNeal, after McNeal had been released from custody, were made before Lewis was even arrested. McNeal denied that he was working for the government after his release and there was no evidence that McNeal was prompted to elicit information from Lewis during this period. Lewis was not arrested until January 18, 1965. Escobedo v. State of Illinois is distinguishable. In that case the investigation had closed and the petitioner had become the accused —" }, { "docid": "2748972", "title": "", "text": "stipulation, not apparent on the record here, the facts may be developed in the district court on collateral attack. FRIENDLY, Circuit Judge (dissenting) : The interrogation of Massimo after arraignment raises serious questions not simply with respect to the Fifth Amendment under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which are cited by my brother Smith, but, more importantly, with respect to the Sixth under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Since Massimo’s “criminal prosecution” had begun, the Sixth Amendment entitled him to counsel at any “critical stage,” Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), which interrogation to elicit his guilt surely was, unless the protection was waived. Warnings by law enforcement officers and subsequent action by the accused that might suffice to comply with Fifth Amendment strictures against testimonial compulsion would not necessarily meet what I regard as the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached. See United States ex rel. O’Connor v. New Jersey, 405 F.2d 632, 636 (3 Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969); contra, Coughlan v. United States, 391 F.2d 371 (9 Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. De Loy, 421 F.2d 900 (5 Cir. 1970). Indeed, in the case of a federal trial there would seem to be much ground for outlawing all statements resulting from post-arraignment or indictment interrogation (as distinguished from volunteered statements) in the absence of counsel when the questioning has no objective other than to establish the guilt of the accused, even if the Sixth Amendment does not require so much. See Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964). The majority does not reach this serious issue because of the" }, { "docid": "205473", "title": "", "text": "in forma pauperis so that McGarrity would have an opportunity to prove this allegation. The exhibit referred to above also contains at least one other contention with supporting allegations, apparently overlooked by the district court, which may not be regarded as frivolous. This contention and these allegations are to the effect that, at a time when he was without counsel and was deeply depressed, McGarrity’s will was overborne and he was “forced” to make incriminating statements against himself, and was “forced” to sign a written confession, which statements and confession were used against him at the trial. Incriminating statements or a confession extorted by mental coercion are as involuntary as if they were obtained by violence or threats of violence. Jackson v. Denno, 378 U.S. 368, 389-390, 84 S.Ct. 1774, 12 L.Ed.2d 908; Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 100 L.Ed. 126. If, at the remanded proceedings which must in any event be held, McGarrity is able to prove these allegations, he is entitled to habeas corpus relief. In his application McGarrity also contends that reception of these incriminating statements and confession in evidence against him deprived him of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel, made applicable to the states under the Fourteenth Amendment. In this connection he alleges that, at the time of such interrogation he was not advised of his right to remain silent or his right to counsel and was denied the assistance of counsel. The alleged manner in which McGarrity’s in-custody police interrogation was conducted, would have been constitutionally impermissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, decided in 1964, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided in 1966. However, McGarrity was convicted in 1959 and, as the district court correctly ruled, neither Escobedo nor Miranda are to be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Davis v. State of" }, { "docid": "17100005", "title": "", "text": "PER CURIAM: In this appeal from a bank robbery conviction, defendant’s only basic assertion of error concerns the admissibility of identifications of him made at or pursuant to a police station lineup, where he was present without counsel. Defendant acknowledges the force of the Supreme Court’s decision in Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), which limited the so-called per se exclusionary rule as to uncounseled lineups to identifications “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” The Court in Kirby observed that the right to lineup counsel established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), stems from the Sixth Amendment right to counsel rather than the Fifth Amendment right against self-incrimination in which the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has its roots. The Court relied on several Sixth Amendment decisions which established that the constitutional right to counsel does not attach until after the initiation of adversary judicial proceedings. Defendant contends that the Sixth Amendment right to counsel applies to him nonetheless because he was in custody at the time, albeit pursuant to another unrelated indictment for bank robbery. Participation in a lineup while in custody, he argues, is a “critical stage of the proceedings” at which he should have been provided with counsel. Defendant seeks by this logic to override the limitations imposed in Kirby by resorting to the Fifth Amendment protections embodied in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, supra. The contention that Miranda is applicable in the lineup context was definitively rejected in Kirby v. Illinois, 406 U.S. at 688, 92 S.Ct. 1877. It is not the right to counsel that the Fifth Amendment protects but the freedom from custodial interrogation without counsel. The fact defendant was in custody for" }, { "docid": "1760012", "title": "", "text": "88 L.Ed. 1542 (1944); Wilson v. United States, 221 U.S. 361, 384-385, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 74, 26 S.Ct. 370, 50 L.Ed. 652 (1906). The second motion for dismissal presented by the defendant Pierson is premised upon the same facts as the first motion, namely, the production by the Rheem Corporation of the appointment books, desk calendars and diaries used by the defendant Pierson. The documents were produced in compliance with the subpoena duces tecum addressed to the corporation and were mailed to the Department of Justice with an accompanying affidavit of compliance prepared by defendant Pierson. Pierson contends that he was compelled to incriminate himself in violation of his rights under the Fifth Amendment of the Constitution and that this occurred because he did not have available the advice of legal counsel respecting the implications of turning over the subpoenaed records. He supports his claim here on the holdings in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This contention is not supported either by the facts of the case or the applicable law. Pierson, as an officer of the corporation and unlike the corporation itself, does have a constitutional privilege against self-incrimination. However, he does not come within the scope of either Escobedo or Miranda, supra. The Supreme Court in Miranda, supra, indicated the scope of the protections provided : At page 444, 86 S.Ct. at page 1612: “Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” And at page 445, 86" }, { "docid": "2661184", "title": "", "text": "police force, testified that he frequented the Shangrila Club nightly, but that he never saw liquor in the club nor observed Kubik selling liquor. The primary contention advanced by Kubik is that evidence was admitted “in violation of the Fourth, Fifth and Sixth Amendments to the United States Constitution.” Pinpointing this broad contention, Kubik argues that the failure of the investigating agents to warn or advise him of his rights as enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rendered his statements to the investigating agents inadmissible at trial. The issue as to the admissibility of Kubik’s statements was timely raised in a motion to suppress all statements made during the course of the investigation and the liquor seized after the arrest. The district court, Honorable Roy L. Stephenson, conducted a plenary hearing on the motion. In denying it he stated: “A suspect’s Fifth Amendment privilege against self-incrimination, and his Sixth Amendment right to the assistance of counsel to protect that privilege come into play as soon as law enforcement officers take him into custody or otherwise restrict his freedom of action in any significant way. The requirements of a warning of constitutional rights are confined to situations involving custodial interrogation. Miranda v. State of Arizona, 384 U.S. 436, 444, 478-479, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966); Es-cobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).” Judge Stephenson proceeded to find as a fact that Kubik’s statements were made prior to his arrest, and before he had been deprived of his freedom of action in any significant way. The court also declined to suppress the twenty-nine bottles of liquor seized from Kubik’s ear immediately after his arrest on the ground that he had voluntarily consented to the search. We fully agree with the district court’s findings of fact and conclusions of law and hold that Judge Stephenson properly denied the motion to suppress. The Miranda warnings have" }, { "docid": "1742438", "title": "", "text": "deportation proceedings. Alderete argues only that he should have been told of his right to remain silent, not that he had the right to an attorney. The Trias court did rely in part on the lack of necessity of counsel as a distinction between deportation hearings and criminal trials, citing Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970), which held that the right to counsel during interrogation and other sixth amendment safeguards required in criminal cases by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), were not applicable to deportation proceedings. However, the court also quoted the following language from the Seventh Circuit’s decision in Chavez-Raya v. INS, 519 F.2d 397, 402 (7th Cir.1975): A principal purpose of the Miranda warnings is to permit the suspect to make an intelligent decision as to whether to answer the government agent’s questions. [Citations omitted.] In deportation proceedings, however — in light of the alien’s burden of proof, the requirement that the alien answer non-incriminating questions, the potential adverse consequences to the alien of remaining silent, and the fact that an alien’s statement is admissible in the deportation hearing despite his lack of counsel at the preliminary interrogation — Miranda warnings would be not only inappropriate but could also serve to mislead the alien. Trias, 528 F.2d at 368. Miranda’s requirement that an attorney be present if the suspect wants one is designed to protect the privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 469-70, 86 S.Ct. 1602, 1625-26, 16 L.Ed.2d 694 (1966). Because both Trias and Chavez were concerned with the alien’s decision whether to answer questions, their holdings that a failure to give Miranda warnings does not preclude use of the alien’s statements in a deportation hearing are fully applicable to Alderete’s claim that his statements were inadmissible absent a warning that he had the right to remain silent. Absent a showing that Alderete’s statements were" }, { "docid": "15642865", "title": "", "text": "F.Supp. 278 (W.D.Pa. 1959), aff’d 275 F.2d 94 (3d Cir. 1960), can no longer be deemed dispositive of questions of suppression of evidence in light of recent Supreme Court decisions. In both Burdick and Wheeler, the defendants argued that admissions made to Internal Revenue agents in the course of investigations of their income tax returns should have been suppressed because they were obtained in violation of the Fifth Amendment. In each case, however, it was held that the test of admissibility was whether the statement was entirely voluntary and understanding^ given, and that failure to warn a person that he did not have to testify against himself and that any information given might be used against him in a criminal proceeding did not make the admission involuntary. The cases relied upon were Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448 (1912) and Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896). No violation of the Sixth Amendment was asserted in either Burdick or Wheeler; the dates of the cases would suggest why. The defendant in the present case, however, cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3d Cir. 1965), in support of his position that statements and information obtained when he was without benefit of counsel were in violation of his rights under the Sixth Amendment. Subsequent to the hearing and argument on the motion, the Supreme Court decided Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda rests the Sixth Amendment right to counsel squarely upon the Fifth Amendment right against self-incrimination and additionally \"establishes express conditions of warnings concerning constitutional rights and demonstration of intelligent waiver of such rights while the individual is in custody at the police station or otherwise deprived of his freedom of action. In absence of the observance of" }, { "docid": "7027970", "title": "", "text": "interrogation. Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 1625-27, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 484-85, 84 S. Ct. 1758, 1761-62, 12 L.Ed.2d 977 (1964); Jett v. Castaneda, 578 F.2d 842, 844 (9th Cir. 1978); United States v. Lemon, 550 F.2d 467, 471 (9th Cir. 1977). The relevant inquiry in determining whether an interrogation is custodial is whether a reasonable person would have believed himself to be in custody. United States v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978). The agents just happened to encounter Zazzara in Kirk’s office, where the interrogation took place; he was not summoned there. The investigation had just begun and there was clearly no probable cause to arrest Zazzara at that time. The FBI agent exerted no pressure on Zazzara to stay; as Zazzara’s own testimony revealed he was free to leave. Considering these relevant factors in the present case, see United States v. Rubies, 612 F.2d 397, 404 & n.8 (9th Cir. 1979); United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978), we conclude the interrogation was not custodial. Zazzara’s right to counsel under the Fifth Amendment had not yet arisen. Nor had Zazzara’s Sixth Amendment right to counsel attached at the time of the interview. Under the rule of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), a defendant has a Sixth Amendment right to counsel at government interrogations after adversary proceedings have begun against the defendant. United States v. Hearst, 563 F.2d 1331, 1348 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Duvall, 537 F.2d 15, 21 (2nd Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). The crucial element to this Sixth Amendment Massiah right is that adversary proceedings have begun against the defendant. Until the defendant has been arrested or indicted, whatever suspicions the police might have, the defendant is not an “accused,” and, therefore, Massiah is inapplicable. See United States v. Nashawaty, 571 F.2d 71, 74-75 (1st Cir. 1978)." }, { "docid": "15642864", "title": "", "text": "two Internal Revenue agents assigned to the case. Initially, it should be stated that the defendant did not have counsel present at either of the meetings which will hereafter be described, nor did he seek the advice of counsel concerning these investigations until after the meetings had taken place. The defendant rests his motion solely on contentions that the evidence was obtained in violation of his rights under the Fifth and Sixth Amendments. The defendant does not expressly assert that the evidence was obtained by coercion, fraud, misrepresentation or deceit, or other than “voluntarily”. Rather, the defendant urges that deception was implicit in the failure of Internal Revenue agents to apprise the defendant when their investigations became in fact an inquiry into possible criminal conduct, and likewise in their failure to warn the defendant of his constitutional rights at such time. More specifically, the defendant contends that the test of “voluntariness” as defined and applied in cases such as United States v. Burdick, 214 F.2d 768 (3d Cir. 1954), and United States v. Wheeler, 172 F.Supp. 278 (W.D.Pa. 1959), aff’d 275 F.2d 94 (3d Cir. 1960), can no longer be deemed dispositive of questions of suppression of evidence in light of recent Supreme Court decisions. In both Burdick and Wheeler, the defendants argued that admissions made to Internal Revenue agents in the course of investigations of their income tax returns should have been suppressed because they were obtained in violation of the Fifth Amendment. In each case, however, it was held that the test of admissibility was whether the statement was entirely voluntary and understanding^ given, and that failure to warn a person that he did not have to testify against himself and that any information given might be used against him in a criminal proceeding did not make the admission involuntary. The cases relied upon were Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448 (1912) and Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896). No violation of the Sixth Amendment was asserted in either Burdick or Wheeler; the" }, { "docid": "22176082", "title": "", "text": "necessary. We find no error based upon appellant’s claim that the Government wrongfully failed to disclose or produce. The appellant also seeks a reversal on the ground that he was •deprived of rights protected by the Fourth, Fifth and Sixth Amendments by the admission into evidence of surreptitious recordings of statements made by him to Mrs. Fuller after September 10 and 17, 1965. His argument rests, inter alia, on the contention that, after Mrs. Fuller’s Grand Jury testimony and no later than the dates on which she played her tape recordings of his statements for the F. B. I., he became the “target of an investigation” and was entitled to be advised of his rights to be silent and to have the presence of counsel before any statements he made could be used against him. He adds that, at least after September 17th, Mrs. Fuller was somehow acting in the capacity of a Government “agent.” These arguments have little force, however, because the Supreme Court’s recent decision in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, (1966) makes it clear that its holdings in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, (1964), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), were never intended to go so far. See also United States ex rel. Molinas v. Mancusi, 370 F.2d 601 (2 Cir. 1967), cert. denied 386 U.S. 984, 87 S.Ct. 1285; 18 L.Ed.2d 232; Hurst v. United States, 370 F.2d 161 (5 Cir. 1967). In the Hoffa case the defendant’s similar Fifth Amendment claim was rejected for a reason that applies with equal force here and that is that “a necesary element of compulsory self-incrimination is some kind of compulsion,” 385 U.S. at 304, 87 S.Ct. at 414, a factor which is completely lacking in the present case. Even if Mrs. Fuller could be considered a Government agent, still without compulsion the privilege against self-incrimination is not" }, { "docid": "23383051", "title": "", "text": "intentionally waived them. At trial, certain of Mohabir’s statements were admitted into evidence, and they played an important part of the government’s case against appellant. The parties apparently agree that the warnings given by the Assistant to appellant, fully quoted above, complied with the requirements of the Fifth Amendment and the teachings of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); similarly, appellant has made no claim either below or before us that his statement was involuntary within the meaning of Miranda. But this is simply the beginning of analysis, for appellant’s Sixth Amendment right to counsel had attached at the time of his indictment, which preceded his interrogation. See Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411 (1972) (plurality opinion). Accordingly, the central issue before us is whether appellant waived his rights under the Sixth, rather than the Fifth, Amendment. See Brewer v. Williams, 430 U.S. 387, 397-98, 97 S.Ct. 1232, 1238-1239, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 204-06, 84 S.Ct. 1199, 1201-1203, 12 L.Ed.2d 246 (1964). The distinction is a crucial one: building upon Judge Friendly’s influential dissent in United States v. Massimo, 432 F.2d 324 (2d Cir. 1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971), a number of cases in this court have made clear that waivers of Sixth Amendment rights must be measured by a “higher standard” than are waivers of Fifth Amendment rights. In Massimo, the defendant was interrogated in the absence of counsel after his arraignment and after he apparently had signed a written waiver. In contrast to the majority of the panel, Judge Friendly found it necessary to discuss the issue now before us. As he pointed out in his dissent: The interrogation of Massimo after arraignment raises serious questions not simply with respect to the Fifth Amendment under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which are cited by my brother" }, { "docid": "22442511", "title": "", "text": "States ex rel. Stovall v. Denno, supra, or in court, Swingle v. United States, supra, fingerprints and palm prints, Smith v. United States, D.C.Cir., 324 F.2d, supra. United States v. Iacullo, supra, exemplars of handwriting, State v. Fisher, supra, People v. Graves, supra, examination of one’s body to find blood on it, McFarland v. United States, supra, and the taking of a blood sample, Sehmerber v. State of California, supra. They also make it clear that it is permissible to require that the suspect put on or take off clothing, move, assume certain poses, or speak, as Gilbert was required to do. Because one’s voice is as much a physical characteristic as the col- or of his eyes, we reject the notion, advanced by some authorities, that requiring the suspect to speak, where doing so does not involve communicating what he knows, violates his privilege. SIXTH AMENDMENT “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.” United States Const., Amendment 6. Gilbert would have us extrapolate from certain decisions of the Supreme Court a rule that he had a right to consult counsel before being required to participate in the lineup, and to have the assistance of counsel during the lineup. He deduces from this rule a further result, that when these claimed rights are denied, no witness who was present at the lineup may give identifying testimony against him at his trial. We reject both the purported rule and the claimed result. The cases from which the purported rule is extracted fall into two categories. One group of cases calls the Sixth Amendment to the aid of the Fifth when the police seek information from the suspect who is in custody or on bail. Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The foregoing statement relates to the factual situations" } ]

[ { "docid": "4987545", "title": "", "text": "application for leave to appeal is pending (and thereafter, for the duration of appellate proceedings, should the application be granted). . This issue was recently addressed in Brainard v. Imperial Manufacturing Co., 571 F.Supp. 37, an opinion authored by Senior Judge Pet-tine. Brainard postulated that \"it is well settled Rhode Island law that an employment contract for an indefinite period is terminable by either party at will. Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.I.S.Ct.1981); Oken v. National Chain Co., 424 A.2d 234, 237 (Ri.S.Ct.1981); School Committee of Providence v. Board of Regents for Education [112 R.I. 288], 308 A.2d 788, 790 (R.I.S.Ct.1973).” Id. at 39. In such a situation, Brainard rejects the notion that at-will employment, without more, embraces an implied covenant of good faith or fair dealing under Rhode Island law. Id. at 40. Brainard is the best available statement of law on the subject; and this court discerns no reason why, if the material facts are not distinguishable, Brainard should not be controlling here. . In so doing, the citizenship of the parties for diversity purposes should be clarified as well. See note 1, ante." } ]

[ { "docid": "20102237", "title": "", "text": "371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Defendant Sealol argues both grounds in opposition to the motion. The claim plaintiff wishes to add to his complaint in this case arises, if at all, under state law. This Court may legitimately adjudicate such a claim under the doctrine of pendent jurisdiction; however, as a state law claim, it is necessary to look to the law of the forum state (Rhode Island) in order to determine whether that law recognizes the existence of such an action. The Rhode Island Supreme Court has declared on many occasions that an employee who renders personal services for an indefinite term (an employee-at-will) may be terminated “at any time for any reason or for no reason at all,” Roy v. Woonsocket Institution for Savings, 525 A.2d 915 (R.I.1987). Until recently, the Rhode Island Supreme Court has never addressed the issue of whether an employee-at-will may maintain a cause of action for wrongful discharge where he has been released in retaliation for refusing to participate in an alleged illegal activity. Rather, all Rhode Island Supreme Court cases prior to 1988 that discuss the general rule for employees-at-will deal with the situation where the employee merely claimed that he was terminated without good cause, Roy, 525 A.2d at 916-918, or for no reason at all. See Roy 525 A.2d at 918 n. 2. The law of Rhode Island regarding wrongful discharge actions based upon employer violations of express statutory language, until very recently, was unclear. Normally, where the law of the forum state is “unclear” and a procedure for certifying issues of law from the federal to the state supreme court exists, the United States Supreme Court has directed lower federal courts to follow the certification procedure. Lehman Brothers v. Schein, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). Thus, had the Rhode Island Supreme Court continued its complete silence on the issue in dispute, this Court would have been required to certify the question of law to that court pursuant to Rule 6 of the Rhode Island Supreme Court Rules" }, { "docid": "20102240", "title": "", "text": "the Court first addressed the law of Rhode Island concerning contracts for personal services for an indefinite term. Citing Roy v. Woonsocket Institute for Savings, 525 A.2d at 917, the Court noted that such contracts were terminable at the will of either party at any time for any reason or for no reason at all. The case, however, was not decided upon this ground. Rather, the Court proceeded to uphold the trial judge’s grant of summary judgment on the ground that plaintiff had failed to present specific facts showing that he was fired as a result of reporting defendant’s malpractice. All that could be determined from the record was that plaintiff had left defendant’s premises without authorization and had a history of absenteeism. Thus, there was no genuine issue of material fact to be decided and it was held that defendant’s motion for summary judgment was properly granted by the trial judge. That the Supreme Court proceeded to make this determination indicates clearly that the Court recognized that plaintiff possessed a cause of action for retaliatory discharge. Otherwise, application of the rule in Roy would have decided the motion for summary judgment as a matter of law. If the Roy rule applied, plaintiff, as an employee-at-will, would have been barred from bringing a cause of action in tort because he could be discharged “at any time” and “for any reason,” including for reporting misconduct on the part of his employer. The Supreme Court, however, upheld the trial judge’s ruling on the ground that plaintiff had failed to show that he was fired in a retaliatory manner. Implicitly, this is a recognition that plaintiff already possessed a cause of action for retaliatory discharge, and lost the motion for summary judgment because he failed to assert facts that would create an issue of material fact as to the discharge’s retaliatory nature. The Court in Volino, then, has indicated that a cause of action in tort exists for wrongful discharge in cases where employees-at-will are terminated in retaliation for reporting employer conduct that is contrary to expressly stated legislative policy. As an alternative" }, { "docid": "18066290", "title": "", "text": "§ 42-87-1, et seq., the Rhode Island Fair Employment Practices Act, § 28-5-1, et seq., and the Rhode Island Parental and Family Medicql Leave Act, § 28-48-1, et seq., require the same analysis as that utilized for the corresponding federal statutes. See Hodgens v. General Dynamics Corp., 963 F.Supp. 102, 104 (D.R.I.1997); Newport Shipyard Inc., v. Rhode Island Comm’n for Human Rights, 484 A.2d 893, 897-98 (R.I. 1984); Eastridge v. Rhode Island College, 996 F.Supp. 161 (D.R.I.1998).. Summary judgment must be granted as to these state law claims for the same reasons summary judgment was granted with respect to the corresponding federal law claims. a. The Rhode Island Fair Employment Practices Act R.I. Gen. Laws § 28-5-7 (“FEPA”), according to the Rhode Island Supreme Court “unmistakably forbids' individual acts of discrimination as well as patterns of discriminatory practice.” Eastridge, 996 F.Supp. 161, 168, citing Iacampo, 929 F.Supp. at 574. This statute provides, in relevant part: Unlawful employment practices.—It shall be an unlawful employment practice: (1) For any employer: (i) To refuse to hire any applicant for employment because of his or her race or color, religion, sex, handicap, age, sexual orientation, or country of ancestral origin, or (ii) Because of such reasons, to discharge an employee or discriminate against him, ■ or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment... R.I. Gen. Laws § 28-5-7. Although FEPA provides protection from handicap discrimination, which is not addressed in Title VII, FEPA is nonetheless intended to be Rhode Island’s analog to Title VII, and the same analytical framework should apply to the FEPA claim as would apply to a Title VII claim. Hodgens, 963 F.Supp. at 104. The burdens of proof for Title VII claims are such that the “plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely that not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Furnco Construction Corp. v. Waters," }, { "docid": "5868257", "title": "", "text": "viewing the record in the light most favorable to the party opposing the motion, there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 177 (1st Cir. 1982); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Defendant argues that summary judgment is appropriate in this case because plaintiff has not exhausted the grievance and arbitration remedies provided by the collective bargaining agreement between Imperial and the United Paperworkers International Union. This argument is without merit. The uncontested affidavit of John MacDonald, the Chief Steward of Local 1468 of the United Paperworkers International Union, makes clear that Brainard filed a grievance with union officials concerning his discharge, that this grievance was denied at a step 3 meeting held on January 26, 1983 between Imperial and officials of Local 1468, and that the denial of Brainard’s grievance was a final resolution of his claim under the terms of the collective bargaining agreement. Defendant has not, therefore, met its burden of proving that it is entitled to judgment as a matter of law on the ground that plaintiff has failed to exhaust his contractual remedies. Defendant also argues that plaintiff fails to state a claim upon which relief can be granted under Rhode Island law. Defendant correctly points out that it is well settled Rhode Island law that an employment contract for an indefinite period is terminable by either party at will. Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.I.S.Ct.1981); Oken v. National Chain Co., 424 A.2d 234, 237 (R.I.S.Ct.1981); School Committee of Providence v. Board of Regents for Education, 112 R.I. 288, 308 A.2d 788, 790 (1973). Plaintiff, however, argues that the Rhode Island Courts have not yet been presented with the question of whether the retaliatory or abusive discharge of an at-will employee is actionable. The Rhode Island Supreme Court’s decision in Oken v. National Chain Co., 424 A.2d 234 (R.I.S.Ct. 1981), plaintiff contends, indicates that" }, { "docid": "20102233", "title": "", "text": "OPINION AND ORDER LAGUEUX, District Judge. The primary issue presented for decision in this matter is whether the Rhode Island Supreme Court will recognize a common law cause of action in tort in cases where an employer terminates an employee-at-will for reporting employer misconduct expressly prohibited by statute. In the past twenty years, a large number of jurisdictions in the United States has recognized such an action in one form or another. More importantly, the Rhode Island Supreme Court, itself, has tacitly indicated that it will sanction a cause of action for retaliatory discharge in an employment-related context. Given these two indicia, this Court believes that the Rhode Island Supreme Court in the future will expressly recognize a cause of action in tort for employees-at-will who have been discharged for exposing employer conduct that is in violation of an express statutory mandate. Plaintiffs motion to amend the complaint to add such a cause of action in this case, therefore, is granted. Plaintiff, James J. Cummins, was first employed by the Engineered Products division of defendant EG & G Sealol, Inc. (Sealol) in February of 1982. One year later plaintiff became the Director of Business Development for Sealol. He remained in that position until January 15, 1986, when his employment was terminated effective January 27, 1986. On November 7, 1986, plaintiff filed a complaint with the Rhode Island Commission for Human Rights alleging that defendant had discriminated against him be cause of his age. On the same day, plaintiff also filed a similar complaint with the Equal Employment Opportunity Commission in Boston, Massachusetts. After exhausting his administrative remedies, plaintiff filed a complaint in this Court again alleging that defendant had intentionally discriminated against him because of his age. He requested relief in the form of back pay, reinstatement and “liquidated damages.” Defendant answered plaintiffs complaint on May 1, 1987, in essence claiming that plaintiff was discharged for reasons other than age. For approximately the next year the parties undertook discovery of the matter in dispute. Then in March of 1988, plaintiff filed a motion to amend the complaint by adding a" }, { "docid": "23054431", "title": "", "text": "the plaintiff ] on any permissible claim or theory.” Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir.1993). a. Contract Claim Andrade contends that the evidence she submitted on Count V was legally sufficient to permit a jury to find a breach of contract, and therefore the district court erred in granting Self-Help judgment as a matter of law on Count V. Because we agree with the court below that Andrade did not prove a prima facie case of breach of contract, we affirm the court’s grant of the Rule 50(a) motion on Count V. Under Rhode Island law, it is well established that “a promise to render personal services to another for an indefinite term is terminable at any time at the will of either party and therefore creates no executory obligations.” School Comm. of Providence v. Board of Regents for Educ., 112 R.I. 288, 308 A.2d 788, 790 (1973); see also Lamoureux v. Burrillville Racing Ass’n, 91 R.I. 94, 161 A.2d 213, 216 (1960); Booth v. National India-Rubber Co., 19 R.I. 696, 36 A. 714, 715 (1897). Although she presented no evidence of an express employment contract for a fixed period between herself and Self-Help, Andrade argues that certain provisions in the Self-Help Policy and the NCSC Manual, both of which were admitted into evidence, created a triable issue as to whether she and Self-Help had an implied contract for a fixed period and whether she could only be terminated for just cause. Apparently recognizing it to be an issue of first impression, however, the Rhode Island Supreme Court expressly avoided the question of whether to adopt the emerging case law that employment manuals or policies may give rise to enforceable contract rights, Roy v. Woonsocket Inst. for Sav., 525 A.2d 915, 918 (R.I.1987), and, as a federal court hear ing this state law issue under our supplemental jurisdiction, we are reluctant to extend Rhode Island’s contract law “beyond its well-marked boundaries.” Markham v. Fay, 74 F.3d 1347, 1356 (1st Cir.1996); cf. A Johnson & Co. v. Aetna Casualty and Sur. Co., 933 F.2d 66, 73 (1st" }, { "docid": "11768284", "title": "", "text": "was the Director of Business Development for Seal-ol. On March 2, 1987, having exhausted his administrative remedies, Cummins filed a single count complaint in this Court alleging that Sealol had intentionally discriminated against him because of his age. In response, Sealol filed an answer denying Cummins’s allegation. In essence Sealol claimed that it discharged Cummins for reasons other than age. On March 30, 1988, after months of discovery, Cummins filed a motion to amend his complaint. Cummins sought to add a second count claiming that he had been wrongfully terminated for refusing to engage in illegal conduct and for whistleblow-ing. Cummins maintains that Rhode Island recognizes a cause of action, sounding in tort, for retaliatory discharge. This motion was filed pursuant to Fed.R.Civ.P. 15(a), and federal jurisdiction rests on the doctrine of pendent jurisdiction. In his amended complaint, Cummins re-avers his cause of action for age discrimination in Count I. In Count II, Cummins alleges that in June of 1983 he became aware that Sealol was using inflated prices on certain defense contracts which were for the production of equipment. Cummins claims that he was fired, either in whole or in part, because he criticized Sealol’s purportedly illegal pricing practices and refused to participate in conduct that would perpetuate them. Maintaining that termination for this reason is “contrary to the public policy of the United States and the State of Rhode Island,” Cummins claims that he has a cause of action for wrongful discharge under Rhode Island state law. On April 13, 1988, Sealol filed an opposition to Cummins’s motion to amend. Sealol earnestly contended that Rhode Island does not recognize a common law action for retaliatory discharge. This Court then heard oral argument and subsequently took the matter under advisement. By an Opinion and Order dated June 30, 1988, 690 F.Supp. 134, this Court held that while it is a close question of law, Rhode Island does implicitly recognize an action sounding in tort for retaliatory discharge. Therefore, Cummins’s motion to amend was granted. Subsequently, on August 3, 1988, Sealol filed a motion to amend the June 30, interlocutory" }, { "docid": "12933403", "title": "", "text": "relevant part: Unlawful employment practices. — It shall be an unlawful employment practice: (1) For any employer: (i) To refuse to hire any applicant for employment because of his or her race or color, religion, sex, handicap, age, sexual orientation, or country of ancestral origin, or (ii) Because of such reasons, to discharge an employee or discriminate against him or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment ... FEPA, according to the Rhode Island Supreme Court, “unmistakably forbids individual acts of discrimination as well as patterns of discriminatory practice.” Iacampo, 929 F.Supp. at 574, citing Newport Shipyard v. R.I. Com’n for Human Rights, 484 A.2d 893, 897 (R.I.1984). FEPA is intended to be Rhode Island’s analog to Title VII and the Rhode Island Supreme Court has applied the analytical framework of federal Title VII cases to FEPA. Iacampo, 929 F.Supp. at 574, citing Marley v. United Parcel Serv., Inc., 665 F.Supp. 119, 128 (D.R.I.1987). Thus, this Court must deny defendants’ motion for summary judgement on Count IV for the reasons previously expressed with respect to Counts I and II. b. Rhode Island General Laws Title 42, Chapter 112 Plaintiff has also sought a claim, in Count V, under RICRA, R.I.Gen.Laws § 42-112-1, made actionable through § 42-112-2. This statute was clearly patterned after 42 U.S.C. § 1981. In Moran v. GTech Corp., 989 F.Supp. 84, 90-92 (D.R.I.1997), this Court observed that the “logical inference to be drawn is that the state legislature intended a cause of action pursuant to § 42VL12-2 to mirror the federal cause of action provided by § 1981.” Again, as this Court noted in Moran, while a federal court should be reluctant to retain supplemental jurisdiction when there is inadequate guidance from the state regarding the question presented, such a problem is not present here as the Rhode Island Supreme Court has provided an outline for structuring this cause of action. Id. Since there are material facts at issue as to whether defendants had discriminatory motives in failing to hire" }, { "docid": "20102239", "title": "", "text": "of Appellate Procedure. However, resort to the certification procedure is unnecessary in the present case. In Volino v. General Dynamics, 539 A.2d 531 (R.I.1988), the Rhode Island Supreme Court tacitly recognized that employees-at-will possess a cause of action in tort in cases where they are discharged for exposing employer conduct that is contrary to statutorily enacted public policy. In Volino, plaintiff alleged that he had been wrongfully discharged by defendant in retaliation for reporting several incidents of malpractice by defendant and its agents that violated United States Navy construction standards. Defendant moved for summary judgment contending that plaintiff was not discharged because he reported violations but rather because he had left defendant’s premises without authorization, and had a history of absenteeism. In addition, defendant argued, that plaintiff was an employee-at-will, and thus, could be terminated at any time with or without cause. The trial court granted defendant’s motion for summary judgment on the latter ground and plaintiff appealed to the Rhode Island Supreme Court. In deciding whether the trial court had properly granted summary judgment, the Court first addressed the law of Rhode Island concerning contracts for personal services for an indefinite term. Citing Roy v. Woonsocket Institute for Savings, 525 A.2d at 917, the Court noted that such contracts were terminable at the will of either party at any time for any reason or for no reason at all. The case, however, was not decided upon this ground. Rather, the Court proceeded to uphold the trial judge’s grant of summary judgment on the ground that plaintiff had failed to present specific facts showing that he was fired as a result of reporting defendant’s malpractice. All that could be determined from the record was that plaintiff had left defendant’s premises without authorization and had a history of absenteeism. Thus, there was no genuine issue of material fact to be decided and it was held that defendant’s motion for summary judgment was properly granted by the trial judge. That the Supreme Court proceeded to make this determination indicates clearly that the Court recognized that plaintiff possessed a cause of action for" }, { "docid": "20102241", "title": "", "text": "retaliatory discharge. Otherwise, application of the rule in Roy would have decided the motion for summary judgment as a matter of law. If the Roy rule applied, plaintiff, as an employee-at-will, would have been barred from bringing a cause of action in tort because he could be discharged “at any time” and “for any reason,” including for reporting misconduct on the part of his employer. The Supreme Court, however, upheld the trial judge’s ruling on the ground that plaintiff had failed to show that he was fired in a retaliatory manner. Implicitly, this is a recognition that plaintiff already possessed a cause of action for retaliatory discharge, and lost the motion for summary judgment because he failed to assert facts that would create an issue of material fact as to the discharge’s retaliatory nature. The Court in Volino, then, has indicated that a cause of action in tort exists for wrongful discharge in cases where employees-at-will are terminated in retaliation for reporting employer conduct that is contrary to expressly stated legislative policy. As an alternative method of determining the present state of the law in the forum state, the First Circuit Court of Appeals has directed federal district courts to “assay sister state adjudications of the issue.” Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir.1972); Plummer v. Abbott Laboratories, 568 F.Supp. 920 (D.R.I.1983). A review of those states’ positions on the issue in dispute supports the conclusion that the Rhode Island Supreme Court will expressly recognize a cause of action for retaliatory discharge. Of the fifty states and the District of Columbia, the courts in forty-four have directly addressed the issue of whether an employee-at-will possesses a cause of action in tort for wrongful discharge in a retaliatory discharge context. In one of those states, Massachusetts, it has been held that an employer implicitly covenants not to discharge an employee-at-will except for good cause. Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E. 2d 1251 (1977). Thus, claims arising in a retaliatory discharge context are predicated upon breach of contract theory in that jurisdiction. DeRose v." }, { "docid": "491162", "title": "", "text": "court’s rejection of appellant’s claim that the “offer” was periodically refreshed by what appellant — but not the court — viewed as continuing reassurances. III. THE IMPLIED COVENANT CLAIM Appellant next claims that ELC breached an implied covenant of good faith and fair dealing when it refused to proceed with the alleged contract, and, adding insult to injury, gave apocryphal reasons for its refusal to perform. When, as now, a duty of good faith and fair dealing is alleged to arise from a contractual relationship, a claim for breach of that duty sounds in contract rather than in tort. See Bertrand v. Quincy Market Cold Storage & Warehouse Co., 728 F.2d 568, 571 (1st Cir.1984). This, in turn, dictates choice of law: the same substantive law that governs the contract claim also governs the implied covenant claim. In this instance, then, Rhode Island law controls. Rhode Island recognizes that virtually every contract contains an implied covenant of good faith and fair dealing between the parties. See A.A.A. Pool Serv. & Supply, Inc. v. Aetna Cas. & Sur. Co., 121 R.I. 96, 395 A.2d 724, 725 (1978); Ide Farm & Stable, Inc. v. Cardi, 110 R.I. 735, 297 A.2d 643, 645 (1972); see also Fleet Nat’l Bank v. Liuzzo, 766 F.Supp. 61, 67 (D.R.I.1991); Landry v. Farmer, 564 F.Supp. 598, 611 (D.R.I.1983). Because the implied covenant exists “so that the contractual objectives may be achieved,” Ide Farm, 297 A.2d at 645, it necessarily follows that where there is no contract, there is no duty. In such circumstances, there is nothing from which the covenant can be implied. Or, phrased differently, the law does not require persons to act in particular ways in order to achieve illusory contractual objectives. On this basis, the covenant is left without visible means of support, and no claim for a breach of it will lie. See Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 36 (1st Cir.1992); cf. Gleason v. Merchants Mut. Ins. Co., 589 F.Supp. 1474, 1477 (D.R.I.1984) (applying same principle in insurance context). IV. THE UNFAIR TRADE PRACTICES CLAIM We come," }, { "docid": "12933402", "title": "", "text": "before a federal court. 42 U.S.C. § 1983, on the other hand, establishes no substantive rights itself but it does create a cause of action for deprivation of federal rights committed under color of state law. It provides the means by which a plaintiff can recover for the violation of his or her federal constitutional rights including those secured by the 14th amendment. Therefore, this Court dismisses the Equal Protection claim as stated in Count III because it fails to state a claim upon which relief can be granted. D. State Claims Pursuant to 28 U.S.C.A. § 1331, this Court may exercise supplemental jurisdiction over state law claims which clearly “form part of the same case or controversy” that is before the Court and over which the Court has proper jurisdiction. Iacampo v. Hasbro et al, 929 F.Supp. 562, 570 (D.R.I.1996), citing Hart v. Mazur, 903 F.Supp. 277, 281 (D.R.I. 1995). a. Rhode Island General Laws Title 28, Chapter 5 In Count IV, plaintiff asserts a claim under FEPA, R.I.Gen.Laws § 28-5-7, which states, in relevant part: Unlawful employment practices. — It shall be an unlawful employment practice: (1) For any employer: (i) To refuse to hire any applicant for employment because of his or her race or color, religion, sex, handicap, age, sexual orientation, or country of ancestral origin, or (ii) Because of such reasons, to discharge an employee or discriminate against him or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment ... FEPA, according to the Rhode Island Supreme Court, “unmistakably forbids individual acts of discrimination as well as patterns of discriminatory practice.” Iacampo, 929 F.Supp. at 574, citing Newport Shipyard v. R.I. Com’n for Human Rights, 484 A.2d 893, 897 (R.I.1984). FEPA is intended to be Rhode Island’s analog to Title VII and the Rhode Island Supreme Court has applied the analytical framework of federal Title VII cases to FEPA. Iacampo, 929 F.Supp. at 574, citing Marley v. United Parcel Serv., Inc., 665 F.Supp. 119, 128 (D.R.I.1987). Thus, this Court must deny" }, { "docid": "11768285", "title": "", "text": "for the production of equipment. Cummins claims that he was fired, either in whole or in part, because he criticized Sealol’s purportedly illegal pricing practices and refused to participate in conduct that would perpetuate them. Maintaining that termination for this reason is “contrary to the public policy of the United States and the State of Rhode Island,” Cummins claims that he has a cause of action for wrongful discharge under Rhode Island state law. On April 13, 1988, Sealol filed an opposition to Cummins’s motion to amend. Sealol earnestly contended that Rhode Island does not recognize a common law action for retaliatory discharge. This Court then heard oral argument and subsequently took the matter under advisement. By an Opinion and Order dated June 30, 1988, 690 F.Supp. 134, this Court held that while it is a close question of law, Rhode Island does implicitly recognize an action sounding in tort for retaliatory discharge. Therefore, Cummins’s motion to amend was granted. Subsequently, on August 3, 1988, Sealol filed a motion to amend the June 30, interlocutory order to include a statement certifying the order for prompt appellate review pursuant to § 1292(b). In essence, Sealol seeks to have this Court’s determination that Rhode Island recognizes the tort of retaliatory discharge overturned immediately through an interlocutory appeal. Section 1292(b), which governs permissive interlocutory appeals, requires that a district judge certify an order for appellate consideration before a court of appeals will determine whether to review the order. Cummins filed an objection to Sealol’s motion to amend. On August 26,1988, this Court heard oral argument on the motion and took the matter under advisement. It is now in order for decision. DISCUSSION Certification for appellate review of an interlocutory order pursuant to § 1292(b) is to be granted only in very rare cases. Generally, the federal courts strictly adhere to the final judgment rule under which only final resolutions of litigation are appeal-able. Section 1292(b) provides an exception to the rule but sets a stringent, three-prong test to be satisfied before permitting interlocutory appeals. Sealol’s motion to amend fails for several reasons under" }, { "docid": "5868260", "title": "", "text": "at 1256. 424 A.2d at 237. Plaintiff argues that the Court’s statement that there was no evidence of “bad faith” coupled with its citation of Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), a leading decision on the issue of retaliatory or bad faith discharges of at-will employees, indicates that the Court would recognize a cause of action for the abusive or retaliatory discharge of an at-will employee. The Court rejects plaintiff’s contention that the wrongful termination of an at-will employee is presently actionable under Rhode Island law. The Rhode Island Courts have not recognized the right of at-will employees to sue for wrongful discharge. See Feinberg v. Newport Hospital, No. 78-0274, (D.R.I. Jan. 12, 1982), aff’d, 692 F.2d 745 (1st Cir.1982); Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.I.S.Ct. 1981). In Rotondo the plaintiff specifically argued in his brief to the Rhode Island Supreme Court that the wrongful discharge of an at-will employee should be actionable both in contract and in tort. The Supreme Court summarily dismissed these contentions in light of the well established rule that a promise to render personal services to another for an indefinite period is terminable at any time at the will of either party. Rotondo v. Seaboard Foundry, Inc., supra, 440 A.2d at 751. The Rhode Island Supreme Court in no way departed from this rule in Oken v. National Chain Co., 424 A.2d 234 (1981). The statement that the defendant employer had not acted in bad faith was made in response to plaintiff’s claim that he had been “coerced” into accepting a certain employment agreement, id. at 237, and not in response to a claim that the employee had been wrongfully discharged. Moreover, the Court cited Fortune v. National Cash Register, supra, solely for the proposition that “an employer needs flexibility in the face of changing circumstances”. Id. (quoting 373 Mass, at 102, 364 N.E.2d 1251). If anything, this supports defendant’s claim that the wrongful discharge of an at-will employee is not actionable. In short, there is simply no basis for plaintiff’s claim that Oken" }, { "docid": "5868261", "title": "", "text": "these contentions in light of the well established rule that a promise to render personal services to another for an indefinite period is terminable at any time at the will of either party. Rotondo v. Seaboard Foundry, Inc., supra, 440 A.2d at 751. The Rhode Island Supreme Court in no way departed from this rule in Oken v. National Chain Co., 424 A.2d 234 (1981). The statement that the defendant employer had not acted in bad faith was made in response to plaintiff’s claim that he had been “coerced” into accepting a certain employment agreement, id. at 237, and not in response to a claim that the employee had been wrongfully discharged. Moreover, the Court cited Fortune v. National Cash Register, supra, solely for the proposition that “an employer needs flexibility in the face of changing circumstances”. Id. (quoting 373 Mass, at 102, 364 N.E.2d 1251). If anything, this supports defendant’s claim that the wrongful discharge of an at-will employee is not actionable. In short, there is simply no basis for plaintiff’s claim that Oken is implicit acknowledgement that the Rhode Island Supreme Court would abandon the terminable at-will rule under the appropriate circumstances. Indeed, the Rhode Island Supreme Court in Rotondo v. Seaboard Foundry, Inc., supra, cited Oken for the proposition that employees at-will can be terminated at any time. 440 A.2d at 742. A plaintiff who invokes the diversity jurisdiction of the federal court is in a peculiarly poor position to assert a common law cause of action not previously recognized by the state courts. Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir. 1977). Because a federal court sitting in diversity is bound to apply state law as it has been declared by the state courts, id., Gravina v. Brunswick Corp., 338 F.Supp. 1, 2 (D.R.I.1972), the Court finds that plaintiff’s discharge did not give rise to a cause of action in either contract or tort under Rhode Island law. Accordingly, the Court grants defendant’s motion for summary judgment." }, { "docid": "20102236", "title": "", "text": "law of Rhode Island. On April 13, 1988, defendant filed an opposition to plaintiff’s motion to amend, and the entire matter was heard one month later on May 11, 1988. At that time it became unclear whether this Court should certify the issue in dispute to the Rhode Island Supreme Court or decide the matter itself. Consequently, plaintiff’s motion to amend was taken under advisement. It is now in order for decision. The motion to amend the complaint was filed by plaintiff pursuant to Fed.R.Civ.P. 15(a). That rule provides that a party who seeks to amend a pleading after a responsive pleading has been served may amend the pleading “only by leave of court ... [LJeave shall be freely given when justice so requires.” The United States Supreme Court has interpreted Rule 15 to allow a plaintiff to amend his complaint unless the cause of action contained in the attempted amendment fails to state a claim upon which relief can be granted, or the amendment would unduly prejudice defendant in some manner. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Defendant Sealol argues both grounds in opposition to the motion. The claim plaintiff wishes to add to his complaint in this case arises, if at all, under state law. This Court may legitimately adjudicate such a claim under the doctrine of pendent jurisdiction; however, as a state law claim, it is necessary to look to the law of the forum state (Rhode Island) in order to determine whether that law recognizes the existence of such an action. The Rhode Island Supreme Court has declared on many occasions that an employee who renders personal services for an indefinite term (an employee-at-will) may be terminated “at any time for any reason or for no reason at all,” Roy v. Woonsocket Institution for Savings, 525 A.2d 915 (R.I.1987). Until recently, the Rhode Island Supreme Court has never addressed the issue of whether an employee-at-will may maintain a cause of action for wrongful discharge where he has been released in retaliation for refusing to participate in an" }, { "docid": "11768282", "title": "", "text": "OPINION AND ORDER LAGUEUX, District Judge. This matter is presently before the Court on defendant EG & G Sealol, Inc.’s (“Seal-ol”) motion to amend an interlocutory order so as to certify it for immediate appellate review pursuant to 28 U.S.C. § 1292(b). Plaintiff James J. Cummins (“Cum-mins”), a former Sealol employee, originally instituted this action for wrongful termination, claiming age discrimination. Recently, Cummins sought leave to amend his complaint to include a state common law tort claim alleging retaliatory discharge by Sealol for Cummins’s refusal to participate in allegedly illegal conduct and for complaining of such conduct to his superiors. Though it is not certain that Rhode Island recognizes a tort cause of action for retaliatory discharge of an employee-at-will for whistleblowing, this Court granted Cum-mins’s motion to amend his complaint. 690 F.Supp. 134 (D.R.I.1988). Sealol now seeks immediate review of this Court’s decision and requests certification of the order to the United States Court of Appeals for the First Circuit. The issue here is whether a district court should grant § 1292(b) certification of an interlocutory order concerning only one count in a two count case, where that order concerns a question of state law that will likely be certified to the state supreme court for clarification. This Court holds that the extraordinary procedure of § 1292(b) certification is improper in the present case for three reasons. First, the instant matter is not the type of complex and prolonged litigation that would justify § 1292(b) review. Second, in a relatively simple multi-count case, certification of an order that does not affect all of the claims is improper. Third, even were this a single count action, pretrial certification of a disputed state law issue is inappropriate when it is likely that the issue, if it is not rendered moot, will be certified to the state supreme court for consideration. For these reasons Sealol’s motion to amend the order to include a § 1292(b) certification is denied. BACKGROUND Sealol employed Cummins from February of 1982 until it terminated his employment effective January 27, 1986. At the time of his discharge, Cummins" }, { "docid": "20102238", "title": "", "text": "alleged illegal activity. Rather, all Rhode Island Supreme Court cases prior to 1988 that discuss the general rule for employees-at-will deal with the situation where the employee merely claimed that he was terminated without good cause, Roy, 525 A.2d at 916-918, or for no reason at all. See Roy 525 A.2d at 918 n. 2. The law of Rhode Island regarding wrongful discharge actions based upon employer violations of express statutory language, until very recently, was unclear. Normally, where the law of the forum state is “unclear” and a procedure for certifying issues of law from the federal to the state supreme court exists, the United States Supreme Court has directed lower federal courts to follow the certification procedure. Lehman Brothers v. Schein, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). Thus, had the Rhode Island Supreme Court continued its complete silence on the issue in dispute, this Court would have been required to certify the question of law to that court pursuant to Rule 6 of the Rhode Island Supreme Court Rules of Appellate Procedure. However, resort to the certification procedure is unnecessary in the present case. In Volino v. General Dynamics, 539 A.2d 531 (R.I.1988), the Rhode Island Supreme Court tacitly recognized that employees-at-will possess a cause of action in tort in cases where they are discharged for exposing employer conduct that is contrary to statutorily enacted public policy. In Volino, plaintiff alleged that he had been wrongfully discharged by defendant in retaliation for reporting several incidents of malpractice by defendant and its agents that violated United States Navy construction standards. Defendant moved for summary judgment contending that plaintiff was not discharged because he reported violations but rather because he had left defendant’s premises without authorization, and had a history of absenteeism. In addition, defendant argued, that plaintiff was an employee-at-will, and thus, could be terminated at any time with or without cause. The trial court granted defendant’s motion for summary judgment on the latter ground and plaintiff appealed to the Rhode Island Supreme Court. In deciding whether the trial court had properly granted summary judgment," }, { "docid": "5868259", "title": "", "text": "the Court would recognize such a cause of action under the appropriate circumstances. In Oken the Court stated: The trial justice found that the employment agreement was terminable at will, and we see no reason to upset that finding. Thus, Oken had no vested right to continued employment. The old commission structure was modified. The continuation of Oken’s employment was sufficient consideration to support this modification. Williston, Contracts § 135A at 569 (3d ed. 1957); 1 Corbin, Contracts § 136 at 581 (1963). Oken had the option of continuing on Cipolla’s terms or leaving the company. He chose the former. Oken contends that he was coerced into this agreement. We see no evidence here of any coercion or bad faith by National. Instead, the company appears to have made a business judgment based upon a dramatic increase in the price of metals. See Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), where the court said, “[A]n employer needs flexibility in- the face of changing circumstances.” Id. at 102, 364 N.E.2d at 1256. 424 A.2d at 237. Plaintiff argues that the Court’s statement that there was no evidence of “bad faith” coupled with its citation of Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), a leading decision on the issue of retaliatory or bad faith discharges of at-will employees, indicates that the Court would recognize a cause of action for the abusive or retaliatory discharge of an at-will employee. The Court rejects plaintiff’s contention that the wrongful termination of an at-will employee is presently actionable under Rhode Island law. The Rhode Island Courts have not recognized the right of at-will employees to sue for wrongful discharge. See Feinberg v. Newport Hospital, No. 78-0274, (D.R.I. Jan. 12, 1982), aff’d, 692 F.2d 745 (1st Cir.1982); Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.I.S.Ct. 1981). In Rotondo the plaintiff specifically argued in his brief to the Rhode Island Supreme Court that the wrongful discharge of an at-will employee should be actionable both in contract and in tort. The Supreme Court summarily dismissed" }, { "docid": "5868258", "title": "", "text": "under the terms of the collective bargaining agreement. Defendant has not, therefore, met its burden of proving that it is entitled to judgment as a matter of law on the ground that plaintiff has failed to exhaust his contractual remedies. Defendant also argues that plaintiff fails to state a claim upon which relief can be granted under Rhode Island law. Defendant correctly points out that it is well settled Rhode Island law that an employment contract for an indefinite period is terminable by either party at will. Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.I.S.Ct.1981); Oken v. National Chain Co., 424 A.2d 234, 237 (R.I.S.Ct.1981); School Committee of Providence v. Board of Regents for Education, 112 R.I. 288, 308 A.2d 788, 790 (1973). Plaintiff, however, argues that the Rhode Island Courts have not yet been presented with the question of whether the retaliatory or abusive discharge of an at-will employee is actionable. The Rhode Island Supreme Court’s decision in Oken v. National Chain Co., 424 A.2d 234 (R.I.S.Ct. 1981), plaintiff contends, indicates that the Court would recognize such a cause of action under the appropriate circumstances. In Oken the Court stated: The trial justice found that the employment agreement was terminable at will, and we see no reason to upset that finding. Thus, Oken had no vested right to continued employment. The old commission structure was modified. The continuation of Oken’s employment was sufficient consideration to support this modification. Williston, Contracts § 135A at 569 (3d ed. 1957); 1 Corbin, Contracts § 136 at 581 (1963). Oken had the option of continuing on Cipolla’s terms or leaving the company. He chose the former. Oken contends that he was coerced into this agreement. We see no evidence here of any coercion or bad faith by National. Instead, the company appears to have made a business judgment based upon a dramatic increase in the price of metals. See Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), where the court said, “[A]n employer needs flexibility in- the face of changing circumstances.” Id. at 102, 364 N.E.2d" } ]

[ { "docid": "15901086", "title": "", "text": "chance, any money or property * * Section 1171 does not require that a slot machine be a coin activated device nor that winnings be delivered automatically. The statute is clear on these points for “gambling device” is defined as “any so-called ‘slot machine’ or any other machine or mechanical device * * * by the operation of which a person may become entitled * * A slot machine is not a gambling device merely because it has coin slots or an automatic pay off mechanism. It is a gambling device because its function and design are to allow one to stake money or any other thing of value upon the uncertain event of achieving the winning combination of insignia. Essentially the game is played as it was before the alteration or modification; and we cannot believe that a player would classify the machine differently after the conversion. Defendants’ advertising literature recognized this fact when it stated: “Convert your game and STOP being fouled up with laws on gambling devices the complete game [slot machine and trade booster] have been thoroughly location tested and the playing public love it and play it like they used to play a standard bell machine.” (Emphasis added.) Defendants have attempted to accomplish, or rather, permit others, i. e., owners of slot machines, to accomplish, by indirection that which they cannot accomplish directly. The Johnson Act clearly encompasses a slot machine equipped with a trade booster. United States v. Three (3) Trade Boosters, D.C. M.D.Pa., 135 F.Supp. 24. The slot machines to which the trade boosters were attached are not involved in this cause except to the extent necessary to determine whether the trade booster is a “subassembly or essential part intended to be used in connection with any such machine or mechanical device.” 15 U.S.C.A. § 1171(a) (3). Therefore, the fact that the slot machines were not shown to have been in interstate commerce is of no significance. We therefore turn to the question of whether the trade booster is a sub-assembly or essential part of a so-called slot machine. Defendants argue in the" } ]

[ { "docid": "7790635", "title": "", "text": "is firmly established that the burden falls to the moving party to make a good cause showing that the failure to act was the result of excusable neglect.”). While the claimants contend that the government’s answers to their discovery requests are incomplete, the court notes that the government filed its answers to these requests on January 23, 1984. Thus, the claimants were aware of the government’s allegedly incomplete answers long before the time for responding to the government's motion had expired. Moreover, the claimants have failed to indicate how a favorable resolution of these disputed discovery requests would create a genuine issue of material fact. Indeed, to the extent that these discovery requests are designed to demonstrate an illegal search or seizure, they are irrelevant. See note 16, infra. . The affirmative defenses contained in the answer of Walter Lazuka and Walter Music & Vending Co., Inc. are all without merit. As indicated previously, both the legislative history to the Gambling Devices Act of 1962 and the subsequent case law demonstrate that the defendant machines are gambling devices within the meaning of 15 U.S.C. § 1172(a) and that none of the exemptions listed in 15 U.S.C. § 1178 are applicable. Finally, with regard to the claim that these machines were seized in violation of the Fourth and Fourteenth Amendment, the courts have held uniformly that \"an illegal seizure does not immunize the goods from forfeiture.” United States v. An Article of Device “Theramatic\", 715 F.2d 1339, 1341 (9th Cir.1983); United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450-51 (9th Cir.1983); United States v. Deane Hill Country Club, Inc., 342 F.2d 794 (6th Cir.) (even if search were illegal, Country Club would not be entitled to return of 13 slot machines), cert, denied, 381 U.S. 937, 85 S.Ct. 1769 (1965); United States v. One Bally “Barrel-O-Fun\" Coin Operated Gaming Device, 14 L.Ed.2d 701, 224 F.Supp. 794 (M.D.Pa.1963), aff’d. sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3d Cir.1964) (per curiam). See abo United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (exclusionary rule does" }, { "docid": "7790636", "title": "", "text": "are gambling devices within the meaning of 15 U.S.C. § 1172(a) and that none of the exemptions listed in 15 U.S.C. § 1178 are applicable. Finally, with regard to the claim that these machines were seized in violation of the Fourth and Fourteenth Amendment, the courts have held uniformly that \"an illegal seizure does not immunize the goods from forfeiture.” United States v. An Article of Device “Theramatic\", 715 F.2d 1339, 1341 (9th Cir.1983); United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450-51 (9th Cir.1983); United States v. Deane Hill Country Club, Inc., 342 F.2d 794 (6th Cir.) (even if search were illegal, Country Club would not be entitled to return of 13 slot machines), cert, denied, 381 U.S. 937, 85 S.Ct. 1769 (1965); United States v. One Bally “Barrel-O-Fun\" Coin Operated Gaming Device, 14 L.Ed.2d 701, 224 F.Supp. 794 (M.D.Pa.1963), aff’d. sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3d Cir.1964) (per curiam). See abo United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (exclusionary rule does not extend to forbid the use in federal civil proceedings of evidence illegally seized by state officials). Thus, even if the defendant machines were seized illegally, this third affirmative defense would be without merit." }, { "docid": "14683998", "title": "", "text": "subject from pinball machine owners, operators, lessors and location owners representative of the pinball machine fraternity in and about Louisville. The substance of the testimony on the “rewiring” of the type of pinball machine here involved to convert it to a gambling device in full bloom was to the effect that the conversion required only a simple wiring adjustment which could be accomplished in a short time — from a few minutes to about twenty minutes. There was further evidence supportive of the fact that machines similar to the respondent machines were used as gambling devices in and about Louisville. There was testimony from operators that pinball machines similar to the respondent machines could not operate with financial success in the area of Louisville if the location owners did not pay out money on the machines and that such payoffs resulted from games of chance. It is reasonable to conclude that a manufacturer of pinball machines does not fail to take advantage of a ready market for his product, particularly where, as here, he has a distributor in the market area (Branson). To supply the pinball market in Kentucky, Lion Manufacturing Corporation shipped Bally machines to serve a dual purpose: (1) to supply a device readily adaptable for gambling and (2) to attempt to exonerate itself from the provisions of the Gambling Devices Act concerning the design and manufacture of a pinball machine primarily for use in connection with gambling — a machine “by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property * * 15 U.S. C. § 1171(a) (2) (B). Since the intent with which an act is done is rarely if ever susceptible of proof by direct evidence, it must be ascertained from outward manifestations — from words or acts of a party in accomplishing the act and from the facts and circumstances attendant upon the act. In this case there is substantial evidence that supports both the factual conclusion arrived at by the jury in its answer to the" }, { "docid": "20818365", "title": "", "text": "less than convéntional slot machines, were gambling devices. Since the forfeitures of the pinball machines in the present proceedings are based upon the failure .to register them under § 1173(a)(3), and not for unlawful interstate transportation under § 1172, the fact that so-called “free-game” pinball machines are legal under Mississippi law is of no consequence. That the machines may be lawful under state law does not render them exempt from the registration and record keeping requirements of § 1173. It is only where the forfeiture is based upon § 1172, because of the express exemption contained therein, that the legal status of a device such as a free game pinball machine specifically sanctioned by the statute of the state into which the device is transported becomes material. Compare United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57 (W.D.Ky.1965) where forfeiture was upheld under Kentucky law, with United States v. One Bally Bounty In-Line, etc. Pinball Mach., 261 F.Supp. 187 (D.Md. 1966), where claimant prevailed under Maryland law. Claimants next argue that since the slot machines, which were admittedly not in use and did not form part of their business activity, were at all pertinent times stored in a warehouse, they were not subject to forfeiture because of the failure to register. This contention must be rejected since each claimant, because of his admitted activities, was a person required to register under the Act and therefore obligated to maintain records on “each gambling device owned or possessed by him or in his custody.” § 1173(c)(1). This principle was clearly settled by the Fifth Circuit in Various Gambling Devices, supra, when the claim was made that certain pinball machines manufactured prior to the effective date of the Act should be exempt from the forfeiture of other gambling devices in the possession of an unregistered owner. Answering this point, the Fifth Circuit declared: “The structure of the Act defeats this argument. It is not the machines, but the persons possessing them who are required to be registered with the Attorney General.. 15 U.S.C.A. § 1173(a)(3). The registrant is then required to maintain" }, { "docid": "7790618", "title": "", "text": "establishment where the gambling machine is located or by his agent. The committee bill broadens the definition of the term “gambling device” in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly. Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation. H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. From this recitation of legislative history, it is clear that the defendant draw poker-type machines, although technically more advanced, differ little in purpose and design from the machines that Congress sought to prohibit through the Gambling Devices Act of 1962. Indeed, these new machines have many of the same features described in the House Report over twenty years ago. These features include: (1) the option of paying from one to eight quarters for a single play, (2) the potential for winning an inordinate number of free games (e.g., up to 400 on a single play), (3) the ability to “knock off” or eliminate accumulated free games from a machine, and (4) devices for measuring the number of free games eliminated from the machine. See Affidavit of William L. Holmes (Dec. 27, 1983). In United States v. Two Coin-Operated Pinball Machine, 241 F.Supp. 57 (W.D.Ky. 1965), aff'd sub nom. United States v. M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968), the district court concluded that two machines with features similar to those in the present case were gambling devices within the meaning of 15 U.S.C. § 1171(a) and subject to forfeiture under 15 U.S.C. § 1177. The district court made the following pertinent findings of fact: 3. The great number of free games which can be achieved by players, the provision for multiple coin insertion" }, { "docid": "4964326", "title": "", "text": "connection with gambling” and “by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property,” can be determined by examining its characteristics or features. Among the characteristics or features to be found in gambling devices are a meter recording the number of credits earned by a player and a knockoff button to erase credits when he is paid off (United States v. 5 Gambling Devices, 346 F.Supp. 999, 1001 (W.D.La.1972); United States v. Various Gambling Devices, 368 F.Supp. 661, 663 (N.D.Miss.1973); United States v. 18 Gambling Devices, 347 F.Supp. 653, 656 (S.D. Miss.1972)), the provision for multiple coin insertion in order to increase the reward for successful play (United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57, 59 (W.D.Ky.1965)), the great number of credits which can be achieved by players (Id.), and a meter which recorded only those credits which were knocked off. (United States v. 18 Gambling Devices, supra at 661; United States v. Two Coin-Operated Pinball Machines, supra at 59). 4. The characteristics and features rendering these machines “peculiarly and uniquely suited for gambling purpose” (United States v. Two Coin-Operated Pin Ball Machines, supra at 59) are built into each of the machines. They all have knock off switches to erase credits from the machines. They all have meters either in the circuitry or in the form of an electro-mechanical device which counts the number of credits erased from the machine. Most have multiple coin features by which the player can bet more than one coin or credit, thereby increasing the potential payoff. They all have credit meters with the capability of recording an excessive number of credits. The length of time required for completion of each play is very short in duration, in most instances, just a matter of five to ten seconds. A player cannot, regardless of alleged skill levels or capabilities, extend the length of play. All defendants have the capability of being programmed to retain a predetermined percentage of all coins inserted. The outcome of play occurs strictly" }, { "docid": "5457465", "title": "", "text": "the Fort Smith Fair held at Fort Smith, Arkansas. The owners’ basic argument on appeal is the evidence fails to show that the machines in question were coin-operated gaming devices within the meaning of 26 U.S.C. § 4462. They urge the machines are games of skill, and the element of chance, if any, is insufficient to render the machines gaming devices under the statute. The machines involved in these forfeiture proceedings are referred to as the Poker Reno, Mighty Payloader, Crompton Penny Falls, and the Sweepstakes. Poker Reno Machines. The Poker Reno type machines were described and found to be gaming devices in United States v. 20 “Dealer’s Choice” Machines & Coin Contents of $3.50, 341 F.Supp. 1147 (D.S.C.1972), rev’d on other grounds, 483 F.2d 474 (4th Cir. 1973). Similar machines have been found judicially and administratively to be gaming devices within the meaning of section 4462. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963), aff’d sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964); Rev. Rul. 72-566, 1972-2 C.B. 583; Rev.Rul. 56-309, 1956-2 C.B. 893. The fact that the Poker Reno machines, unlike the machines in the cases cited, did not have an electrical control which, in the owners’ words, “deprived the player of the opportunity to exercise his skill in playing the machine,” is not decisive, since the amount of time involved in playing the machine does not alter the substantial element of chance involved. The evidence shows that the “skill” involved in playing was only a small factor and that the element of chance was a substantial factor in winning. The fact that there may be some skill involved in the game is not determinative. United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957). When there is a substantial element of chance involved, the fact that skill in operating the machine is helpful in attaining the end sought does not take the machine out of the type defined by the statute. See United States v. 24 Digger Merchandising Machines, 202 F.2d 647, 649-50 (8th Cir.)," }, { "docid": "7790621", "title": "", "text": "“are not exempted from the application of Chapter 24 of Title 15, U.S.C. by virtue of any exception contained in 15 U.S.C. § 1178 or any other section of Chapter 24.” 241 F.Supp. at 59. In the present case, there can be no doubt that the defendant draw poker-type machines are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property. The previously described features of these machines, which are not in dispute, demonstrate that these machines are gambling devices within the meaning of 15 U.S.C. § 1171(a)(2). Accord United States v. Various Slot Machines on Guam, supra; United States v. Various Gambling Devices, supra, 368 F.Supp. at 663; United States v. Two Coin-Operated Pinball Machines, supra; H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. Furthermore, these same features also refute any claim that the machines are exempt from the application of Chapter 24 of Title 15, 15 U.S.C. §§ 1171-1178, by virtue of an exception contained in 15 U.S.C. § 1178. United States v. Two Coin-Operated Pinball Machines, supra; H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S. Code Cong. & Ad.News 3809, 3811. Thus, there is no genuine issue of material fact as to whether the defendant machines are gambling devices within the meaning of 15 U.S.C. § 1171(a). Fed.R.Civ.P. 56(c), (e); United States v. Various Slot Machines on Guam, supra. In order for the defendant machines to be subject to forfeiture under 15 U.S.C. § 1177, the government must also establish that the machines were “transported, delivered, shipped, manufactured, reconditioned, repaired, sold, disposed of, received, possessed, or used in violation of [15 U.S.C. § 1171-1178].” The government makes two arguments. First, it contends that the machines were transported into Ohio in violation of 15 U.S.C. § 1172. Second, it contends that the machines were used in violation of 15 U.S.C. § 1173(a)(3). The court will address these arguments separately." }, { "docid": "7790610", "title": "", "text": "gambling devices with the meaning of 15 U.S.C. § 1171 and subject to forfeiture for violation of both 15 U.S.C. § 1172 and 15 U.S.C. § 1173(a)(3). The burden of proof in a forfeiture action is set forth in 19 U.S.C. § 1615, as incorporated by 15 U.S.C. § 1177. Under this provision, once the government has met its burden of showing probable cause to institute the forfeiture action, the burden then shifts to the claimant to show by a preponderance of the evidence that the property was not subject to forfeiture. United States v. $22,287.00, United States Currency, 709 F.2d 442, 446 (6th Cir.1983). The probable cause that the government must show is “a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” United States v. $22,287.00, United States Currency, supra, 709 F.2d at 446-47 (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980)). As indicated previously, only gambling devices within the meaning of 15 U.S.C. § 117(a) are subject to forfeiture under 15 U.S.C. § 1177. Clearly, the six conventional slot machines constitute gambling devices within the meaning of section 1171(a)(1) since this provision specifically includes “any so-called ‘slot machine’ or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon.” See United States v. Various Gambling Devices, 368 F.Supp. 661 (N.D.Miss.1973); United States v. Three Trade Boosters, 135 F.Supp. 24 (M.D.Pa.1955). Even if a slot machine is altered so that it cannot accept coins, does not dispense coins, or is not used for gambling, it still remains a gambling device under section 1171. United States v. Three Trade Boosters, supra. A slot machine is not a gambling device merely because it has slots — it is a gambling device because it is designed and manufactured to be used as such. A device manufactured and designed to be used as a gambling device continues to be a gambling device within the contemplation of the law even though, in fact, the device is never used for" }, { "docid": "20818363", "title": "", "text": "not registered either the pinball machines or the slot machines with the Attorney General, nor did they maintain records thereon. The government offered no proof that claimants engaged in any business or other activity, or made any use, of the slot machines beyond the mere act of possessing them. The parties stipulate that the only issue of disputed fact is whether the “free-play” pinball machines are gambling devices within the meaning of the federal statute; claimants admit that the conventional slot machines seized are gambling devices. The characteristic features of the pinball machines are described at length in the stipulation filed in the case. They are coin-activated, electrically operated machines manufactured by Bally Manufacturing Corporation of Chicago, Illinois. These machines feature such devices as a meter to erase games won when the player is paid off, and certain circuitry which may be activated by insertion of additional money into the machine which may give certain game advantages to the player, i. e., increase the possibility of his winning on the basis of chance. That the machines do not themselves pay anything of value but only “free” or additional games is not determinative of their status as gambling devices. Since the machines can be operated so that a person may be entitled to receive money or property as the result of the application of an element of chance, and were designed and manufactured primarily for use in connection with gambling, they are gambling devices under § 1171(a)(2). United States v. Five Gambling Devices, 346 F.Supp. 999 (W. D.La.1972); United States v. Various Gambling Devices, 340 F.Supp. 1200 (N.D.Miss.1972), aff’d 478 F.2d 1194 (5 Cir. 1973). In Various Gambling Devices, claimant Fort appealed from a judgment forfeiting 31 pinball machines identical to the pinball machines in issue and which District Judge Orma R. Smith held were gambling devices. The Fifth Circuit expressly found that such pinball machines, when not registered under the Gambling Devices Act of 1962, were lawfully subject to seizure and forfeiture to the United States. We thus hold that under the broad federal definition the Bally pinball machines, no" }, { "docid": "4964325", "title": "", "text": "accommodate meters, for recording the number of coins inserted and for recording the credits that are “knocked off” or erased. 20. Each machine has a knock-off switch or provisions for a knock-off switch by which the owner may remove unused credits. 21. Each machine has a credit meter which will register at least ninety-nine (99) credits and in some cases up to nine thousand nine hundred ninety-nine (9,999) credits. CONCLUSIONS OF LAW 1. Evidence presented by an expert witness is sufficient to establish the characteristics of gambling devices. United States v. H.M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968). The characteristics of the defendant devices are established by the Declaration of William Holmes. 2. A “gambling device” is any machine designed and manufactured primarily for use in connection with gambling, and by the operation by which a person may be entitled to receive, as the result of the application of an element of chance, any money or property. 15 U.S.C. § 1171(a)(2). 3. Whether a machine was “designed and manufactured primarily for use in connection with gambling” and “by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property,” can be determined by examining its characteristics or features. Among the characteristics or features to be found in gambling devices are a meter recording the number of credits earned by a player and a knockoff button to erase credits when he is paid off (United States v. 5 Gambling Devices, 346 F.Supp. 999, 1001 (W.D.La.1972); United States v. Various Gambling Devices, 368 F.Supp. 661, 663 (N.D.Miss.1973); United States v. 18 Gambling Devices, 347 F.Supp. 653, 656 (S.D. Miss.1972)), the provision for multiple coin insertion in order to increase the reward for successful play (United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57, 59 (W.D.Ky.1965)), the great number of credits which can be achieved by players (Id.), and a meter which recorded only those credits which were knocked off. (United States v. 18 Gambling Devices, supra at 661; United States v. Two Coin-Operated Pinball Machines," }, { "docid": "19225941", "title": "", "text": "cases have held that pinball machines with features identical or similar to those in this case are coin operated gaming devices within the meaning of Section 4462(a) (2). See United States v. One Bally “Barrel-O-Fun ” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963); Turner v. United States, 9 AFTR 2d 2031 (D.C. Kan.1962); United States v. Nine Gambling Devices, 4 AFTR 2d 6187 (S.D. Ill.1957). It is not necessary that there be evidence of actual payoffs in the use of the machines. It is sufficient to show that the machines possess the features that may deliver or entitle the person playing the machine to receive cash, premiums, merchandise or tokens. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; Turner v. United States, supra; United States v. Nine Gambling Devices, supra. Since the $250 tax on coin operated gaming devices is applicable to the machines in this case, and since this tax has not been paid, the machines are subject to forfeiture under 26 U.S.C.A. § 7302. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; United States v. Nine Gambling Devices, supra; United States v. Five Coin-Operated Gaming Devices and Contents, 154 F.Supp. 731 (D.C. Md.1957). Intervenor-mortgagee contends that it is an innocent mortgage holder and as such is entitled to the return of the machines free of any claim of the United States. A forfeiture proceeding, however, is a proceeding in rem against the property, and neither the innocence of the owner or of the chattel mortgagee is a defense to the forfeiture. United States v. Bride, 308 F.2d 470 (9 Cir.1962). Nor are the owner and mortgagee here entitled to a remission of forfeiture in this Court. In cases for violation of the internal revenue laws the district court is without jurisdiction to remit or mitigate the forfeiture except under the provisions of 18 U.S.C.A. § 3617. United States v. Bride, supra. That section applies only to property seized for violation of the internal revenue laws relating to liquor and has no application to the seizure of these pinball machines. A claim for remission or" }, { "docid": "14683974", "title": "", "text": "are instructed that in considering whether the Bally Bounty machine is a gambling device within the meaning of the Gambling Devices Act of 1962 you shall not consider whether or not a special federal tax stamp for a gambling device under the Internal Revenue Code of 1954 has usually been affixed to this type of machine in the Western District of Kentucky. (4) You are instructed that you may not find that the Bally Bounty machine is a gambling device within the meaning of the Gambling Devices Act of 1962 solely on the evidence that machines of similar character are used for gambling payoffs in the Western District of Kentucky. (5) You are instructed that you may not find that the Bally Bounty machine is a gambling device within the meaning of the Gambling Devices Act of 1962 upon the evidence of its physical characteristics or upon the basis of comparison with other types of pinball .machines. (6) You are instructed that section 8 [9] of the Gambling Devices Act of 1962 provides in pertinent part as follows: ‘None of the provisions of the Act shall be construed to apply— “(1) to any machine or mechanical device designed and manufactured primarily for use at a racetrack in connection with parimutuel betting. “(2) to any machine or mechanical device, such as a coin-operated bowling alley, shuffle board, marble machine (a so-called pinball machine), or mechanical gun, which is not designed and manufactured primarily for use in connection with gambling, and (a) which when operated does not deliver as a result of the application of an element of chance, any money or property, or (b) by the operation of which a person may not become entitled to receive, as the result of the application of an element of chance, any money or property, or “(3) to any so-called claw, crane, or digger machine which is not operated by coin, is actuated by a crank, and is designed and manufactured primarily for use at carnivals or county or State fairs.’ ” Accordingly, if you find that the Bally Bounty machine is a ‘so-called" }, { "docid": "5457464", "title": "", "text": "LAY, Chief Judge. The district court determined that various coin-operated machines were taxable as gaming devices under 26 U.S.C. § 4461. The court held, however, that the machines were not to be forfeited under 26 U.S.C. § 7302. The owners of the machines have appealed, arguing that the machines do not fall within the definition of 26 U.S.C. § 4462 for several reasons. The Government has cross-appealed, urging that the district court erred in not ordering forfeiture. We hold the machines are subject to the special tax, but that the district court erred in not ordering forfeiture. On appeal the owners of the machines urge inter alia that the machines are games of skill and as such are not gaming devices; that the prizes won are less than the cost to the player and without the possibility of gain; therefore, there can be no tax under the statute. Facts. In September 1978, the machines in question were seized by the Internal Revenue Service (IRS) as gaming devices on which no tax had been paid, at the Fort Smith Fair held at Fort Smith, Arkansas. The owners’ basic argument on appeal is the evidence fails to show that the machines in question were coin-operated gaming devices within the meaning of 26 U.S.C. § 4462. They urge the machines are games of skill, and the element of chance, if any, is insufficient to render the machines gaming devices under the statute. The machines involved in these forfeiture proceedings are referred to as the Poker Reno, Mighty Payloader, Crompton Penny Falls, and the Sweepstakes. Poker Reno Machines. The Poker Reno type machines were described and found to be gaming devices in United States v. 20 “Dealer’s Choice” Machines & Coin Contents of $3.50, 341 F.Supp. 1147 (D.S.C.1972), rev’d on other grounds, 483 F.2d 474 (4th Cir. 1973). Similar machines have been found judicially and administratively to be gaming devices within the meaning of section 4462. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963), aff’d sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964); Rev. Rul. 72-566," }, { "docid": "7790620", "title": "", "text": "in order to increase the reward for successful play, the facility with which free plays can be eliminated from the free play register and the ease by which free plays so eliminated can be counted renders these devices peculiarly and uniquely suited for gambling purposes. 4. Successful play of these devices cannot be achieved by the application of skill and depends upon the result of the application of an element of chance. 5. The successful player of these devices will win not only a right to replay the devices but also the opportunity to have free games redeemed for cash or merchandise. 241 F.Supp. at 59. The court then concluded: The respondent machines are gambling devices as defined in 15 U.S.C. § 1171 in that they are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive as a result of an application of an element of chance money or property. 241 F.Supp. at 59. The court added that the respondent machines “are not exempted from the application of Chapter 24 of Title 15, U.S.C. by virtue of any exception contained in 15 U.S.C. § 1178 or any other section of Chapter 24.” 241 F.Supp. at 59. In the present case, there can be no doubt that the defendant draw poker-type machines are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property. The previously described features of these machines, which are not in dispute, demonstrate that these machines are gambling devices within the meaning of 15 U.S.C. § 1171(a)(2). Accord United States v. Various Slot Machines on Guam, supra; United States v. Various Gambling Devices, supra, 368 F.Supp. at 663; United States v. Two Coin-Operated Pinball Machines, supra; H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. Furthermore, these same features also refute any claim that the machines are exempt from" }, { "docid": "20818364", "title": "", "text": "machines do not themselves pay anything of value but only “free” or additional games is not determinative of their status as gambling devices. Since the machines can be operated so that a person may be entitled to receive money or property as the result of the application of an element of chance, and were designed and manufactured primarily for use in connection with gambling, they are gambling devices under § 1171(a)(2). United States v. Five Gambling Devices, 346 F.Supp. 999 (W. D.La.1972); United States v. Various Gambling Devices, 340 F.Supp. 1200 (N.D.Miss.1972), aff’d 478 F.2d 1194 (5 Cir. 1973). In Various Gambling Devices, claimant Fort appealed from a judgment forfeiting 31 pinball machines identical to the pinball machines in issue and which District Judge Orma R. Smith held were gambling devices. The Fifth Circuit expressly found that such pinball machines, when not registered under the Gambling Devices Act of 1962, were lawfully subject to seizure and forfeiture to the United States. We thus hold that under the broad federal definition the Bally pinball machines, no less than convéntional slot machines, were gambling devices. Since the forfeitures of the pinball machines in the present proceedings are based upon the failure .to register them under § 1173(a)(3), and not for unlawful interstate transportation under § 1172, the fact that so-called “free-game” pinball machines are legal under Mississippi law is of no consequence. That the machines may be lawful under state law does not render them exempt from the registration and record keeping requirements of § 1173. It is only where the forfeiture is based upon § 1172, because of the express exemption contained therein, that the legal status of a device such as a free game pinball machine specifically sanctioned by the statute of the state into which the device is transported becomes material. Compare United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57 (W.D.Ky.1965) where forfeiture was upheld under Kentucky law, with United States v. One Bally Bounty In-Line, etc. Pinball Mach., 261 F.Supp. 187 (D.Md. 1966), where claimant prevailed under Maryland law. Claimants next argue that since the slot" }, { "docid": "19225940", "title": "", "text": "the player from physically affecting the course of the ball down the playing field. The machines also have a push button or “knock-off” device for releasing free games won which have not been played off. These free games released and not played off are recorded on a meter which is capable of recording up to 999 free games. We think these machines are coin operated gaming devices within the intention of Section 4462(a) (2). Treasury Department Regulations include in a list of machines or devices encompassed by this section a “pinball machine equipped with a push button for releasing free plays and a meter for recording the plays so released, or equipped with provisions for multiple coin insertion for increasing the odds.” 26 CFR § 45.4462-1 (b) (2) (iii). In United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957), it was established that pinball machines can be considered gaming devices within the definition of Section 4462(a) (2). In that case the pinball machines were similar to those seized here. Other cases have held that pinball machines with features identical or similar to those in this case are coin operated gaming devices within the meaning of Section 4462(a) (2). See United States v. One Bally “Barrel-O-Fun ” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963); Turner v. United States, 9 AFTR 2d 2031 (D.C. Kan.1962); United States v. Nine Gambling Devices, 4 AFTR 2d 6187 (S.D. Ill.1957). It is not necessary that there be evidence of actual payoffs in the use of the machines. It is sufficient to show that the machines possess the features that may deliver or entitle the person playing the machine to receive cash, premiums, merchandise or tokens. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; Turner v. United States, supra; United States v. Nine Gambling Devices, supra. Since the $250 tax on coin operated gaming devices is applicable to the machines in this case, and since this tax has not been paid, the machines are subject to forfeiture under 26 U.S.C.A. § 7302. United States v. One Bally “Barrel-O-Fun” Coin-Operated" }, { "docid": "7790619", "title": "", "text": "described in the House Report over twenty years ago. These features include: (1) the option of paying from one to eight quarters for a single play, (2) the potential for winning an inordinate number of free games (e.g., up to 400 on a single play), (3) the ability to “knock off” or eliminate accumulated free games from a machine, and (4) devices for measuring the number of free games eliminated from the machine. See Affidavit of William L. Holmes (Dec. 27, 1983). In United States v. Two Coin-Operated Pinball Machine, 241 F.Supp. 57 (W.D.Ky. 1965), aff'd sub nom. United States v. M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968), the district court concluded that two machines with features similar to those in the present case were gambling devices within the meaning of 15 U.S.C. § 1171(a) and subject to forfeiture under 15 U.S.C. § 1177. The district court made the following pertinent findings of fact: 3. The great number of free games which can be achieved by players, the provision for multiple coin insertion in order to increase the reward for successful play, the facility with which free plays can be eliminated from the free play register and the ease by which free plays so eliminated can be counted renders these devices peculiarly and uniquely suited for gambling purposes. 4. Successful play of these devices cannot be achieved by the application of skill and depends upon the result of the application of an element of chance. 5. The successful player of these devices will win not only a right to replay the devices but also the opportunity to have free games redeemed for cash or merchandise. 241 F.Supp. at 59. The court then concluded: The respondent machines are gambling devices as defined in 15 U.S.C. § 1171 in that they are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive as a result of an application of an element of chance money or property. 241 F.Supp. at 59. The court added that the respondent machines" }, { "docid": "7790612", "title": "", "text": "gambling purposes. 135 F.Supp. at 27 (emphasis in original). See also United States v. Various Slot Machines on Guam, 658 F.2d 697, 699 (9th Cir.1981) (§ 1171(a)(1)(B) does not require that a slot machine deliver winnings automatically). Thus, the six conventional slot machines constitute gambling devices within the meaning of 15 U.S.C. § 1171(a). The government also contends that the 137 draw poker-type machines are gambling devices within the meaning of 15 U.S.C. § 1171(a). The defendant draw poker-type machines are electronic video devices, each of which is controlled by a computer called a microprocessor. The computer takes the place of the person who would serve as the dealer in a game of draw poker. Although the 137 machines were manufactured by several companies and bear different names such as Draw Poker, Tarok, or Castles, the internal operations are the same. The images that appear on the video screen are those of a deck of fifty-two (52) cards containing four (4) suits — hearts, spades, diamonds, clubs — numbered ace through ten (10), and jack, queen, and king, for a total of thirteen (13) cards for each suit. Manufacturers may replace the card images with other items such as castles, but these items still equate with a deck of cards divided into four (4) suits, with thirteen (13) different values in each suit. Each machine will accept from one (1) to eight (8) quarters to begin play. Each quarter inserted is registered on a meter, the coin meter, inside the machine and on the video screen as a credit, usually under the heading “Skill Points.” After inserting the coin(s), the player decides how much to bet on the cards that will appear. Each time the player presses the button marked “Play Credit,” a credit is transferred from the “Skill Points” total to the “Bet” total, which appears on the video screen. A player may bet from one (1) to eight (8) quarters per play. Once the bet is made, the player presses the “Deal” button, and by random selection five (5) cards appear on the video screen. At this point" }, { "docid": "7790611", "title": "", "text": "to forfeiture under 15 U.S.C. § 1177. Clearly, the six conventional slot machines constitute gambling devices within the meaning of section 1171(a)(1) since this provision specifically includes “any so-called ‘slot machine’ or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon.” See United States v. Various Gambling Devices, 368 F.Supp. 661 (N.D.Miss.1973); United States v. Three Trade Boosters, 135 F.Supp. 24 (M.D.Pa.1955). Even if a slot machine is altered so that it cannot accept coins, does not dispense coins, or is not used for gambling, it still remains a gambling device under section 1171. United States v. Three Trade Boosters, supra. A slot machine is not a gambling device merely because it has slots — it is a gambling device because it is designed and manufactured to be used as such. A device manufactured and designed to be used as a gambling device continues to be a gambling device within the contemplation of the law even though, in fact, the device is never used for gambling purposes. 135 F.Supp. at 27 (emphasis in original). See also United States v. Various Slot Machines on Guam, 658 F.2d 697, 699 (9th Cir.1981) (§ 1171(a)(1)(B) does not require that a slot machine deliver winnings automatically). Thus, the six conventional slot machines constitute gambling devices within the meaning of 15 U.S.C. § 1171(a). The government also contends that the 137 draw poker-type machines are gambling devices within the meaning of 15 U.S.C. § 1171(a). The defendant draw poker-type machines are electronic video devices, each of which is controlled by a computer called a microprocessor. The computer takes the place of the person who would serve as the dealer in a game of draw poker. Although the 137 machines were manufactured by several companies and bear different names such as Draw Poker, Tarok, or Castles, the internal operations are the same. The images that appear on the video screen are those of a deck of fifty-two (52) cards containing four (4) suits — hearts, spades, diamonds, clubs — numbered ace through ten (10), and jack," } ]

[ { "docid": "22921145", "title": "", "text": "FERNANDEZ, Circuit Judge. Brian Battles appeals the district court’s denial of his motion to reconsider its sua sponte order dismissing his motion for post-conviction relief on the basis that it was barred by the statute of limitations. See 28 U.S.C. § 2255. We affirm in part, reverse in part, and remand. BACKGROUND Battles was found guilty of drug offenses and was sentenced. We affirmed his conviction, he petitioned the Supreme Court for certiorari, and that petition was denied on October 5, 1998. On October 12,1999, Battles filed for § 2255 relief, but the district court denied the petition sua sponte because it was filed more than one year after the date of denial of certiorari. Battles, then, requested reconsideration on the basis that he had not been able to obtain the trial transcripts from his attorney, who was improperly withholding them and refusing to cooperate. The district court denied the motion on the basis that, as it turned out, Battles did not actually need those transcripts in order to file his petition with the court. In fact, he filed without them. This appeal followed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s denial of the habeas corpus petition based upon untimeliness de novo. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003). Moreover, if the underlying facts on a claim for equitable tolling are undisputed, we review the equitable tolling decision de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “Otherwise, findings of fact made by the district court are ... reviewed for clear error.” Id. DISCUSSION It is undisputed that Battles filed his habeas corpus petition too late unless the transcript delivery delays entitled him to equitable tolling or the delays entitled him to relief on the basis that the facts on which he founds his claims could not have been discovered earlier through the use of due diligence. 28 U.S.C. § 2255(4). A. Equitable Tolling Before we can rule on Battles’ claim for equitable" } ]

[ { "docid": "20386517", "title": "", "text": "F.3d at 42 (quoting Irwin v. Dep’t of Vet. Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). In order to assuage this concern, we have recognized that equitable tolling is available only in cases in which “circumstances beyond the litigant’s control have prevented [her] from promptly filing.” Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir.2005) (alteration in original) (quoting Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir.2002)). These background principles inform our inquiry. “A habeas petitioner bears the burden of establishing the basis for equitable tolling.” Riva v. Ficco, 615 F.3d 35, 39 (1st Cir.2010) (citing Holland, 130 S.Ct. at 2562). To carry this burden, the petitioner must show “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)); see Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir.2007) (listing additional factors that may influence whether or not to grant equitable tolling). Because equitable decisions are made on a case-by-case basis, the determination of whether to toll a limitations period for equitable reasons is fact-intensive. See Holland, 130 S.Ct. at 2565. In the case at hand, the record is sparse concerning a number of salient facts relevant to equitable tolling. Given these gaps, we think it unwise to attempt to resolve the petitioner’s equitable tolling claim here and now. To illustrate why we have reached this conclusion, we highlight some areas in which further development of the facts would prove useful. Equitable tolling normally requires a finding of extraordinary circumstances. See, e.g., Riva, 615 F.3d at 39. In this case the extraordinary circumstances limned by the petitioner involve, among other things, the alleged failure of Rosado (a paralegal purportedly associated with the petitioner’s appellate counsel and paid by the petitioner’s family to prepare a section 2255 petition) to do what he had agreed to do. “[S]ometimes, professional misconduct [may] ... amount to egregious behavior and create an extraordinary circumstance that" }, { "docid": "23665804", "title": "", "text": "petition was untimely because he was not entitled to statutory tolling under 28 U.S.C. § 2254(d)(2). Waldron-Ramsey v. Ryder (Waldron-Ramsey I), 202 Fed.Appx. 182, 182 (9th Cir.2006). Section 2244(d)(2) provides for tolling of the AEDPA statute of limitations for “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending.” However, Waldron-Ramsey’s state petition was untimely, and the United States Supreme Court has explicitly held that an untimely state petition does not toll the AEDPA statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Although we therefore concluded that Wal-dron-Ramsey was not entitled to statutory tolling, we remanded to the district court to analyze the distinct issue whether equitable tolling might be appropriate. On remand, the district court held that Wal-dron-Ramsey was not entitled to equitable tolling. Waldron-Ramsey appeals that order. We agree with the district court and affirm. Ill We review de novo the denial of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir.2008). We also review de novo whether the statute of limitations should be equitably tolled. Id. IY To receive equitable tolling, a petitioner bears the burden of showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418, 125 S.Ct. 1807. We have previously explained that “the threshold necessary to trigger equitable tolling ... is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000)). While Waldron-Ramsey argues that the Supreme Court’s more recent formulation in Pace creates a permissive standard for equitable tolling, the Supreme Court’s formulation is consistent with our sparing application of the doctrine of equitable tolling. To apply the doctrine in “extraordinary circumstances” necessarily suggests the doctrine’s rarity, and the requirement that extraordinary circumstances “stood in his way” suggests that an external force must cause the untimeliness, rather than, as" }, { "docid": "13493779", "title": "", "text": "district court has jurisdiction to rule on a motion for an extension of time to file a § 2255 motion before a substantive request for habeas relief is made, we have not had the opportunity to determine the appropriate standard of review for analyzing denials of such motions. However, we have held that the doctrine of equitable tolling permits untimely habeas filings in “extraordinary situations.” See Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998) (holding that AEDPA’s one year limitation period may be equitably tolled). There are no bright-line rules for determining when extra time should be permitted in a particular case. See Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir.2012). Rather, the unique circumstances of each defendant seeking § 2255 relief must be taken into account. See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir.2011). Courts should grant a motion for an extension of time to file a § 2255 motion sparingly, and should do so only when the “principles of equity would make the rigid application of a limitation period unfair.” Id. (quoting Miller, 145 F.3d at 618). The Supreme Court has instructed that equity permits extending the statutory time limit when a defendant shows that (1) “he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2562-63, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGu-glielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Mere excusable neglect is insufficient. See Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir.2002). Here, Thomas failed to show that he diligently pursued his rights and that he was beleaguered by an extraordinary circumstance. Although temporarily transferred to state custody, Thomas was in federal custody with access to legal materials for approximately nine months, including almost seven weeks leading up to the expiration of his limitations period. Thomas provides no support for a finding that he was diligent, nor does he explain the necessity of the materials he claims he was deprived of." }, { "docid": "22362988", "title": "", "text": "apply to equitable tolling. A. Equitable Tolling AEDPA commands that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (2006). When can that limitation period be tolled for circumstances beyond a prisoner’s control? Just this year, the Supreme Court joined the eleven circuit courts that have considered the question in holding the one-year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner’s control prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. -, -, -, 130 S.Ct. 2549, 2554, 2562, 177 L.Ed.2d 130 (2010). In Holland, the Court recognized equitable tolling of the AEDPA one-year limitations period when the prisoner can show “(1) that he has been pm-suing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). The diligence that is required is “reasonable diligence.” Id. at 2565. While eschewing a “mechanical rule” for determining extraordinary circumstances, the Court pointed to a “flexibl[e],” “case-by-case” approach, drawing “upon decisions made in other similar cases for guid anee.” Id. at 2563. We should “exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.” Id. We have long recognized a general rule that equitable tolling is available where the prisoner can show extraordinary circumstances were the cause of an untimely filing. See, e.g., Calderon v. U.S. Dist. Court, 128 F.3d 1283, 1289 (9th Cir.1997), overruled on other grounds en banc by 163 F.3d 530 (recognizing equitable tolling applies to AEDPA); Spitsyn, 345 F.3d at 799. Under our cases, equitable tolling is available for this reason only when “ ‘extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time’ ” and “ ‘the extraordinary circumstances’ were the cause of [the" }, { "docid": "19886976", "title": "", "text": "S.Ct. 1072. The State confuses the federal rule (here, “the conclusion of direct review”) with its application to the varying facts of the state procedure. Cf. Costarelli, 421 U.S. at 195-97, 198-99, 95 S.Ct. 1534 (examining Massachusetts procedure to determine the state court of last resort under 28 U.S.C. § 1257(a)); Pugh, 465 F.3d at 1299-1300 (examining Florida and Georgia procedure to determine state court of last resort under 28 U.S.C. § 1257(a) and Supreme Court Rule 13.1). To recap, the district court properly began the statute of limitations in 28 U.S.C. § 2244(d) the day after the direct-appeal mandate issued, tolled it while the state post-conviction proceedings were pending, and did not allow the 90-day period for filing for certiorari. Riddle’s petition was thus untimely. III. Since 1999, Nichols v. Bowersox was the controlling precedent for Missouri cases. Under Nichols, Riddle would receive the 90-day tolling of the AEDPA statute of limitations, and his petition would be timely. Riddle argues that he should be entitled to this period on the theory of equitable tolling. Although the Supreme Court has not squarely addressed the question, this circuit (and almost all others) have held that equitable tolling may be applied to AEDPA’s statute of limitations. See Lawrence, 127 S.Ct. at 1085, citing Pace v. DiGuglielmo, 544 U.S. 408, 418 n. 8, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Baker v. Norris, 321 F.3d 769, 771 (8th Cir.2003). See generally Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir.2004) (citing all circuits except D.C.). Because the district court made no findings of fact and treated equitable tolling as an issue of law, this court reviews this issue de novo. See Jihad v. Hvass, 267 F.3d 803, 806 n. 3 (8th Cir.2001). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir.2006), quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807. Equitable tolling is “an exceedingly narrow window of relief.” Jihad, 267" }, { "docid": "16465165", "title": "", "text": "rigid application of a limitation period unfair.” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998) (alterations omitted). Generally speaking, a petitioner is entitled to tolling if he shows: (1) “ ‘that some extraordinary circumstance stood in his way’ and prevented timely filing”; and (2) that “he has been pursuing his rights diligently.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Initially, we agree with the District Court that the Group 2 claims are not eligible for equitable tolling. The parties do not object to this conclusion. The Commonwealth’s argument focuses on the Group 3 claims. The District Court concluded that the Group 3 claims were eligible for equitable tolling because the PCRA II court’s erroneous dismissal of the PCRA II petition constitutes an extraordinary circumstance, and because Munchinski diligently pursued his rights despite his circumstances. (a) The Commonwealth first challenges the District Court’s conclusion that there were extraordinary circumstances that prevented Munchinski from timely filing the instant habeas petition. When the facts allegedly constituting an extraordinary circumstance are not in dispute, “a District Court’s decision on the question whether a case is sufficiently ‘extraordinary ’ to justify equitable tolling should be reviewed de novo.” Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir.2005). The extraordinary circumstances prong requires that the petitioner “in some extraordinary way be[ ] prevented from asserting his or her rights.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.2003). “One ... potentially extraordinary situation is where a court has misled a party regarding the steps that the party needs to take to preserve a claim.” Brinson, 398 F.3d at 230. That is precisely what happened here. The facts before us are remarkably similar to those in Urcinoli v. Cathel, 546 F.3d 269, 273 (3d Cir. 2008). In both cases, a court erroneously dismissed pending petitions amidst confusion over recent caselaw. In both cases, the court implicitly suggested steps that the petitioner should take to present the same claims in the future. In Urcinoli, the court dismissed a so-called “mixed” habeas petition" }, { "docid": "23326194", "title": "", "text": "equitable tolling of the one-year statute of limitations on habeas petitions.”). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Roberts argues that he has dili gently pursued his rights and that his mental incompetence was an extraordinary circumstance beyond his control that caused his untimeliness. He further argues that since he alleged mental incompetency in a verified pleading, we should remand for an evidentiary hearing to determine if equitable tolling is warranted. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006) (noting that a habeas petitioner should “receive an evidentiary hearing when he ‘makes a good faith allegation that would, if true, entitle him to equitable tolling’ ”) (quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir.2003)). A petitioner seeking equitable tolling bears the burden of showing both that there were “extraordinary circumstances,” and that the “extraordinary circumstances were the cause of his untimeliness.” Bryant v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir.2007) (emphasis added). This court has consistently held mental incompetence to be an extraordinary circumstance beyond the prisoner’s control. See Laws, 351 F.3d at 923. Therefore, where “a habeas petitioner’s mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an extraordinary circumstance beyond [his] control.” Id. (internal quotation marks omitted). Roberts argues that this case is controlled by our holding in Laws, and that he is entitled to an evidentiary hearing to determine whether his mental incompetence warrants equitable tolling. In Laws, the pro se petitioner alleged, in a verified pleading, that his “delay in filing was attributable to psychiatric medication which deprived [him] of any kind of consciousness.” Id. at 921 (internal quotation marks omitted). The district court dismissed the petition. On appeal, we vacated the district court’s order and remanded for “further factual development of his claim that the limitations period should be tolled" }, { "docid": "9660778", "title": "", "text": "motion to dismiss, ruling that equitable tolling was not merited because Gibbs had “not demonstrated that his counsel was ... incompetent,” but only that “he had trouble communicating with the attorney and that he was not timely informed that his appeal had been decided.” After the district court issued a certificate of appealability on the equitable tolling question, Gibbs brought this appeal. II. We review de novo the dismissal of a federal habeas petition as untimely. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district court are to be reviewed for clear error.” Id. (citation omitted) (citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner ordinarily has one year from the date his state conviction becomes final to file a habeas corpus petition in federal court. 28 U.S.C. § 2244(d)(1)(A). By statute, the limitations period is tolled while a properly filed state post-conviction petition is pending. Id. § 2244(d)(2). Excluding the statutorily tolled period when Gibbs’s post-conviction petition was before the Nevada courts, both parties, and the district court, agree that Gibbs accrued 257 untolled days before the Nevada Supreme Court denied his PCR appeal. Absent equitable tolling, then, Gibbs had 108 days to file his federal habeas petition, with the limitations period expiring October 22, 2010. Gibbs did not file his federal petition until May 3, 2011, 193 days late. AEDPA’s one-year statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) “ ‘that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). For Gibbs’s" }, { "docid": "6592623", "title": "", "text": "did he challenge Harper’s more detailed assertions as to his condition. 4. The District Court’s Dismissal of Harper’s Petition The district court adopted the magistrate judge’s recommendation to dismiss Harper’s petition as untimely, concluding that “even if Harper had sufficiently demonstrated extraordinary circumstances during the 65 days following his release from the hospital ... [, he] failed to exercise reasonable diligence throughout the 65-day period that he seeks to have tolled.” Harper v. Ercole, 2009 WL 4893196, at * 1. This appeal followed. II. Discussion As the Supreme Court recently confirmed, AEDPA’s one-year limitations period may be tolled only if, consistent with the general requirements of equity, a petitioner demonstrates “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)); see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). While equitable tolling is warranted only in “rare and exceptional circumstances,” Baldayaque v. United States, 338 F.3d 145, 151 (2d Cir. 2003) (internal quotation marks omitted), courts do not apply its requirements mechanistically, see Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (observing that “[e]quity eschews mechanical rules”). Rather, “the exercise of a court’s equity powers must be made on a case-by-case basis,” mindful “that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.” Holland v. Florida, 130 S.Ct. at 2563 (internal quotation marks and alterations omitted); accord Dillon v. Conway, 642 F.3d at 362. On an appeal from a district court’s denial of equitable tolling, we review findings of fact for clear error and the application of legal standards de novo. See Belot v. Burge, 490 F.3d 201, 206 (2d Cir.2007). In this case, the district court assumed from Harper’s undisputed allegations that he satisfied the requirements for equitable tolling of the ninety-eight-day period of his hospitalization. Thus, the issue on this appeal" }, { "docid": "19627789", "title": "", "text": "entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: \"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.\" Id., at 649, 130 S.Ct. 2549 (internal quotation marks omitted). The Tribe calls this formulation of the equitable tolling test overly rigid, given the doctrine's equitable nature. First, it argues that diligence and extraordinary circumstances should be considered together as two factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe's diligence in connection with its finding that no extraordinary circumstances existed. But we have expressly characterized equitable tolling's two components as \"elements,\" not merely factors of indeterminate or commensurable weight. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (\"Generally, a litigant seeking equitable tolling bears the burden of establishing two elements\"). And we have treated the two requirements as distinct elements in practice, too, rejecting requests for equitable tolling where a litigant failed to satisfy one without addressing whether he satisfied the other. See, e.g., Lawrence v. Florida, 549 U.S. 327, 336-337, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (rejecting equitable tolling without addressing diligence because habeas petitioner fell \"far short of showing 'extraordinary circumstances' \"); Pace, supra, at 418, 125 S.Ct. 1807 (holding, without resolving litigant's argument that he had \"satisfied the extraordinary circumstance test,\" that, \"[e]ven if we were to accept [his argument], he would not be entitled to relief because he has not established the requisite diligence\"). Second, the Tribe objects to the Court of Appeals' interpretation of the \"extraordinary circumstances\" prong as requiring a litigant seeking tolling to show an \"external obstacl[e]\" to timely filing, i.e., that \"the circumstances that caused a litigant's delay must have been beyond its control.\" 764 F.3d, at 58-59. The Tribe complains that this \"external obstacle\" formulation amounts to the same kind of \" 'overly rigid per se approach' \" we rejected in Holland . Brief for Petitioner 32 (quoting 560 U.S., at 653, 130 S.Ct. 2549" }, { "docid": "614694", "title": "", "text": "on February 16, 2006, long after the statute of limitations expired. Therefore, the district court did not err in concluding that claims 2, 3, and 4 were time-barred. B. Equitable Tolling Ford argues that he is entitled to equitable tolling because the prosecutor withheld evidence that Goins had received a deal. As an initial matter, we note that claims 2, 3, and 4 are premised on the assumption that Goins received lenient treatment in cases against her for helping law enforcement convict Ford. Ford offers no evidence in support of this assumption other than the allegedly favorable dispositions reflected in Goins’s case files. He also seems to concede that these case files are matters of public record. “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). “The diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’ ” Id. at 2565. The “general rule” is that “equitable tolling is available where the prisoner can show extraordinary circumstances were the cause of an untimely filing.” Bills, 628 F.3d at 1097. “Under our cases, equitable tolling is available for this reason only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the prisoner’s] untimeliness.” Id. (quoting Spitsyn, 345 F.3d at 799) (internal quotation marks omitted). Here, Ford did not pursue his rights diligently. The testimony at his trial, as well as the unique living arrangements and active assistance of Beverly Ford, gave Ford ample reason to suspect that Goins may have sought and received benefits. The fact that Goins’s case files were matters of public record also indicates Ford’s lack of diligence. Ford essentially argues that he is entitled to equitable tolling merely because he alleges that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194," }, { "docid": "22818364", "title": "", "text": "amendment of the previously dismissed habeas petition, but instead assigned to it a new case number. After Rasberry filed the habeas petition, the magistrate judge appointed counsel to represent him. Appellees then moved to dismiss the current habeas petition as untimely. The magistrate judge issued a report and recommendation on December 9, 2002, recommending that the motion to dismiss be granted. Over Rasberry’s timely objec tions, the district court adopted the findings and recommendations in full on March 27, 2003, and dismissed the habeas petition as untimely. Rasberry timely appeals to this court. II A We review de novo the district court’s dismissal of a habeas petition for failure to comply with the statute of limitations. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.2005). A district court’s findings of fact underlying a claim for tolling the limitations period are reviewed for clear error. Id. B Rasberry contends that an extraordinary circumstance stood in the way of the pursuit of his rights, thereby warranting equitable tolling of the statute of limitations. Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate. Espinoza-Matthews, 432 F.3d at 1026. The petitioner must establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). We need not address the diligence element because we conclude that no extraordinary circumstance stood in Rasberry’s way. Rasberry argues that district courts have an obligation to notify a pro se petitioner of the right to amend a habeas petition to include exhausted claims that the petitioner omitted from the habeas petition — if it is apparent from the record that the petitioner meant to include the claims. According to Rasberry, it is irrelevant whether the habeas petition itself demonstrates an intent to include the omitted claims. Thus, Rasberry contends, the district court’s failure to notify him of this right to amend constitutes an extraordinary circumstance. We disagree." }, { "docid": "19899796", "title": "", "text": "the entry of a state court’s order, rather than its subsequent receipt.”). Service-by-mail rules affect the date upon which the order is deemed to have been served, not the date upon which it is considered filed. Because this Court has held that a motion ceases to be “pending” for the purposes of AEDPA on the date of filing, Saunders’s argument is without merit. II. Equitable Tolling The parties disagree as to the standard of review that applies to the district court’s decision to deny equitable tolling. In Belot v. Burge, 490 F.3d 201 (2d Cir.2007), this Court established a three-level standard for reviewing a district court’s decision not to equitably toll the AEDPA limitations period, depending on what aspect of the lower court’s decision is challenged. Id. at 206-07. If the decision not to toll is made as a matter of law, then the standard of review is de novo. If the decision is based on a factual finding, the standard is clear error. If the court has understood the law correctly, and has based its decision on findings of fact supported by evidence, then the standard is abuse of discretion. Id. There are two requirements for equitably tolling the statute of limitations: “ ‘(1) that [petitioner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way* and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). In this case, the district court gave three reasons in support of its finding that equitable tolling was inappropriate. The first reason that the district court gave for denying equitable tolling was that the delay in receipt of the order occasioned by it being mailed to petitioner over the Memorial Day weekend did not constitute an “extraordinary circumstance.” Petitioner contends that this is a question of law that should be reviewed de novo. The magistrate’s R & R, adopted by the district court, stated that “[a]s a threshold matter, this Court is unwilling to" }, { "docid": "12267264", "title": "", "text": "22, 2003. See Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Therefore, the District Court ruled that Urcinoli’s second § 2254 petition, filed on September 29, 2005, was untimely. The court refused to equitably toll the one-year time limitation, reasoning that it was foreclosed from doing so by Third Circuit and Supreme Court precedent. This appeal followed. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We granted a certificate of appealability on the issue of whether Urcinoli was entitled to equitable tolling in light of the sua sponte dismissal of his petition after AED-PA’s time limitation had run, rendering any subsequent petition time-barred. We exercise plenary review over the Distinct Court’s refusal to equitably toll the one-year statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.2003). III. AEDPA’s limitations period is subject to equitable tolling principles. Miller v. N.J. State Dep’t of Corrections, 145 F.3d 616, 617-19 (3d Cir.1998). A statute of limitations “can be tolled when principles of equity would make [its] rigid application unfair.” Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.1990). Generally, such a situation arises 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.” Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir.2006) (internal quotation marks omitted). Only the second circumstance, whether Urcinoli has been prevented from asserting his rights in some extraordinary way, is implicated here. The plaintiff bears the burden of showing that such an extraordinary event has stood in his way, and must also demonstrate that he “diligently pursued his rights.” McAleese v. Brennan, 483 F.3d 206, 219 (3d Cir.2007) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). A. We conclude that Urcinoli was prevented from pursuing his habeas claims, in an “extraordinary way,” when the District" }, { "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": "19886977", "title": "", "text": "Although the Supreme Court has not squarely addressed the question, this circuit (and almost all others) have held that equitable tolling may be applied to AEDPA’s statute of limitations. See Lawrence, 127 S.Ct. at 1085, citing Pace v. DiGuglielmo, 544 U.S. 408, 418 n. 8, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Baker v. Norris, 321 F.3d 769, 771 (8th Cir.2003). See generally Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir.2004) (citing all circuits except D.C.). Because the district court made no findings of fact and treated equitable tolling as an issue of law, this court reviews this issue de novo. See Jihad v. Hvass, 267 F.3d 803, 806 n. 3 (8th Cir.2001). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir.2006), quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807. Equitable tolling is “an exceedingly narrow window of relief.” Jihad, 267 F.3d at 805. In regard to the second element of equitable tolling, Riddle must establish that “extraordinary circumstances external to the petitioner” stood in his way. See id. at 806. Such extraordinary circumstances must not be attributable to the petitioner. Maghee v. Ault, 410 F.3d 473, 476 (8th Cir.2005), citing Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002). See Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.2000) (extraordinary circumstances must be “beyond a prisoner’s control”). The abrogation of an en banc precedent is an extraordinary circumstance, external to Riddle and not attributable to him. Cf. E.J.R.E v. United States, 453 F.3d 1094, 1098 (8th Cir.2006) (assuming arguendo that a later decision of this court could constitute an extraordinary circumstance justifying equitable tolling for a federal habeas petitioner under 28 U.S.C. § 2255). Because this opinion stands in the way of Riddle’s petition being timely, he has established, as a matter of law, an extraordinary circumstance. In regard to the first element of equitable tolling, Riddle must establish diligence in pursuing his habeas petition." }, { "docid": "14162745", "title": "", "text": "periods with respect to each act. Accordingly, because the challenge to the September 2, 1995 parole denial was not raised within the applicable period, it was untimely. A conclusion that each denial of parole was a discrete act is unavoidable in that Morgan indicated that “termination, failure to promote, denial of transfer, or refusal to hire” are discrete acts. Id. at 114, 122 S.Ct. at 2073. Denial of parole and a direction that petitioner participate in a sex offender program are no less discrete. C. Equitable tolling McAleese’s last argument is that even if we find that he failed to file his petition within the AEDPA’s limitation period, we should equitably toll the running of the statute of limitations because he “was actively misled as to even the existence of the various materials sent to the PBPP regarding his parole, and certainly was denied access to their contents.” Appellant’s br. at 23. McAleese’s argument is unpersuasive. Equitable tolling is available “only when the principle of equity would make the rigid application of a limitation period unfair.” Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir.2003) (internal quotation marks omitted). A petitioner seeking equitable tolling bears the burden to show that he diligently pursued his rights and that some “extraordinary circumstances stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). Here, there were no extraordinary circumstances, or, indeed, any circumstances at all, preventing McAleese from filing a timely petition. Obviously, McA-leese cannot persuasively argue that the withholding of the materials sent to the PBPP prevented him from doing so as he, in fact, did file his petition without first seeing that documentation. But instead of timely filing his petition following the 1995 parole denial, he engaged in a multi-year campaign to secure evidence that might support his claims. While we exercise some level of leniency with respect to pro se petitioners as McAleese was both when he first began contesting the parole denial at the administrative level and at the time he filed his initial habeas corpus petition, mere neglect, even" }, { "docid": "13493780", "title": "", "text": "of a limitation period unfair.” Id. (quoting Miller, 145 F.3d at 618). The Supreme Court has instructed that equity permits extending the statutory time limit when a defendant shows that (1) “he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2562-63, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGu-glielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Mere excusable neglect is insufficient. See Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir.2002). Here, Thomas failed to show that he diligently pursued his rights and that he was beleaguered by an extraordinary circumstance. Although temporarily transferred to state custody, Thomas was in federal custody with access to legal materials for approximately nine months, including almost seven weeks leading up to the expiration of his limitations period. Thomas provides no support for a finding that he was diligent, nor does he explain the necessity of the materials he claims he was deprived of. See Robinson v. Johnson, 313 F.3d at 143 (“deprivation of legal material for a relatively brief time period is not sufficient to warrant tolling”). Although his transfer to state custody may have made it more difficult to file a timely § 2255 motion, increased difficulty does not, by itself, satisfy the required showing of extraordinary circumstances. Cf. Mun-chinski v. Wilson, 694 F.3d 308, 329-30 (3d Cir.2012); Pabon, 654 F.3d at 399-400 (holding that “equitable tolling might be warranted when a non-English speaking petitioner could not comply with AEDPA’s statute of limitations because the prison did not provide access to AEDPA-related materials, translation, or legal assistance in his or her language.”); Valverde v. Stinson, 224 F.3d 129 (2d Cir.2000) (remanding case to district court for further factual development on extraordinary circumstances where defendant alleged that corrections officer intentionally confiscated his pro se habeas petition and related legal materials shortly before filing deadline). Accordingly, the District Court did not err in denying Thomas’ motion for an extension of time to file a § 2255 motion. IV. Lastly," }, { "docid": "12105520", "title": "", "text": "was submitted untimely.” The following dates have particular relevance to the parties’ arguments on the tolling issues: September 1, 2005 — Minnesota Supreme Court denies Earl’s petition for rehearing; November 30, 2005 — Period to file petition for writ of certiorari with the United States Supreme Court expires and AEDPA one year limitation begins to run; March, 2006 — Earl allegedly first receives notice that his conviction has become final; if true, AEDPA would begin to run if statutory tolling applies under § 2244(d)(1)(B); September, 2006 — Earl claims case file received; November 30, 2006 — AEDPA statute of limitations expires without tolling; January 4, 2007 — Earl files habeas petition (35 days late without tolling); March, 2007 — AEDPA statute of limitations expires if statutory tolling applies under § 2244(d)(1)(B). II. A. On appeal Earl argues that the district court erred by not applying the doctrine of equitable tolling to the AEDPA statute of limitations. This court reviews the decision to deny equitable tolling de novo. United States v. Hernandez, 436 F.3d 851, 858 (8th Cir.), cert. denied, 547 U.S. 1172, 126 S.Ct. 2341, 164 L.Ed.2d 856 (2006). The burden of demonstrating grounds warranting equitable tolling rests with the petitioner. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Although AEDPA’s one year statute of limitations applies to petitions for federal habeas relief, 28 U.S.C. § 2244(d)(1), equitable tolling may be available to toll the time limit under certain circumstances. Shoemate v. Norris, 390 F.3d 595, 597 (8th Cir.2004). That is because AEDPA’s one year limitations period is a true statute of limitations rather than a jurisdictional bar. Id. Although the Supreme Court has never expressly held that AEDPA permits equitable tolling, it has had reason to assume it does without deciding the question: We have not decided whether § 2244(d) allows for equitable tolling. Because the parties agree that equitable tolling is available, we assume without deciding that it is. To be entitled to equitable tolling, [Petitioner] must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary" }, { "docid": "12105521", "title": "", "text": "(8th Cir.), cert. denied, 547 U.S. 1172, 126 S.Ct. 2341, 164 L.Ed.2d 856 (2006). The burden of demonstrating grounds warranting equitable tolling rests with the petitioner. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Although AEDPA’s one year statute of limitations applies to petitions for federal habeas relief, 28 U.S.C. § 2244(d)(1), equitable tolling may be available to toll the time limit under certain circumstances. Shoemate v. Norris, 390 F.3d 595, 597 (8th Cir.2004). That is because AEDPA’s one year limitations period is a true statute of limitations rather than a jurisdictional bar. Id. Although the Supreme Court has never expressly held that AEDPA permits equitable tolling, it has had reason to assume it does without deciding the question: We have not decided whether § 2244(d) allows for equitable tolling. Because the parties agree that equitable tolling is available, we assume without deciding that it is. To be entitled to equitable tolling, [Petitioner] must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (internal citation and quotation marks omitted). In this circuit “equitable tolling is appropriate only under limited conditions, for example, where extraordinary circumstances beyond a prisoner’s control prevent the timely filing of a petition” or where the “conduct of the defendant has lulled the plaintiff into inaction.” Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir.2001) (internal quotation marks omitted). The use of equitable procedures “to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes.” Flanders v. Graves, 299 F.3d 974, 976 (8th Cir.2002) (quoting Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir.2001)). We will decline to apply the doctrine of equitable tolling if a habeas petitioner has not diligently pursued his rights. Finch v. Miller, 491 F.3d 424, 427 (8th Cir.2007). The state argues as a threshold matter that Earl has raised the issue" } ]

[ { "docid": "8600293", "title": "", "text": "or to afford the parties the opportunity to present the case under new theories; instead, the motion is a device properly used to correct manifest errors of law or fact or to present newly discovered evidence.” Rosera v. International Harvester Co., 109 F.R.D. 143, 148-49 (E.D.Wis.1986). . Standard Havens alleges several evidentiary errors were made by the trial court. These issues are minor and need not be discussed in great length. We will, however, address each claim individually. Standard Havens appeals the district court's conclusion that section 1.2 of the contract did not contain covenants imposing duties on Fort Howard, but rather were specification requirements that Standard Havens had to meet. We agree with the district court's interpretation. Section 1.2 of the contract is entitled \"Application and Sizing”. This section, as the district court found, is merely a list of specifications Standard Havens’ baghouse had to satisfy. Nowhere in section 1.2 is there language of promise to bind Fort Howard. Standard Havens also claims it was error for the district court not to allow evidence concerning Fort Howard's operation of its boilers into court. Once again, however, this is merely an attempt by Standard Havens to introduce evidence of misuse into the trial. The district court correctly ruled that this evidence was contrary to its earlier order concerning the defense of misuse, and as such, was inadmissible. We find this was not an abuse of discretion and agree with the district court’s decision. Standard Havens' next attempt to demonstrate error involves the trial court’s decision to admit into evidence a document prepared by Fort Howard under the business record exception to the hearsay rule. The document at issue was entitled \"Baghouse Testing” and consisted of data concerning the different levels of pressure drop experienced by Fort Howard. After hearing Standard Havens’ objection, the district judge determined the document was to be admitted under Fed.Rule of Evid. § 803(6), the business record exception. The standard of review for such an evidentiary ruling is abuse of discretion. Prudential Ins. Co., 789 F.2d at 1279. The district judge reached his decision after viewing" } ]

[ { "docid": "17722825", "title": "", "text": "a verdict has been returned seize for the first time on the point that the comments to the jury were improper and prejudicial.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 851, 84 L.Ed. 1129 (1940). A party who waits until the jury returns an unfavorable verdict to complain about improper comments during opening statement and closing argument is bound by that risky decision and should not be granted relief. See Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 298 (7th Cir.1985) (improper comments made during closing argument). While some fundamental errors “may mandate new trials despite the lack of contemporaneous objection”, id., we decline to find such a fundamental error here. Third, the plaintiffs appeal the trial court’s admission into evidence of certain engineering drawings which plaintiffs assert defendant did not produce until immediately prior to trial. Plaintiffs argue that without the drawings they were unable to verify the accuracy of the defendant’s in-court model of the airplane’s fuel system. Once again, we find no objection in the record at the time the drawings were admitted into evidence. Finding no contemporaneous objections to the engineering drawings in the record, we review for plain error. McEwen, 926 F.2d at 1645. Considering that virtually all of the drawings were produced substantially prior to trial and only one was produced at the latest one week prior to trial, the admission of the engineering drawings does not meet the stringent plain error standard. Additionally, we note that plaintiffs had a full opportunity to engage in cross-examination concerning these drawings and the fuel system model to alert the jury to any inaccuracies. Finally, plaintiffs appeal the trial court’s admission of the defendant’s model of the airplane’s fuel system and evidence of the tests performed on the model prior to trial. Although plaintiffs made no objection at the time the model was introduced at trial, they did present an objection to the court at a pretrial hearing. Evidentiary rulings made over contemporaneous objections will be upheld on appeal unless they constitute an abuse of discretion. McEwen, 926 F.2d at" }, { "docid": "3202331", "title": "", "text": "was not allowed to offer his opinion on the cause of the accident, and that the Crash Report was redacted to obscure the “most significant portions,” App. Br. 17. (Following the previously discussed pre-trial motions in limine, the Crash Report had been redacted to exclude evidence of Harrington’s liability insurance.) Again, all parties agreed to this evidentiary exclusion pursuant to Federal Rule of Evidence 411, and we have already held this was not an abuse of the district court’s discretion. Additionally, appellants argue that the Report should not have been redacted to exclude Cress’s field opinion on the cause of the accident. Having agreed to these redactions before trial and offered the Report into evidence themselves, plaintiffs may not now argue error on the part of the trial court. See United States v. Cunningham, 405 F.3d 497, 502 (7th Cir.2005) (citing United States v. Redditt, 381 F.3d 597, 602 (7th Cir.2004)). As to the claim that Officer Cress was not allowed to refresh his memory using the Report, this simply is not true. In preliminary questioning, Cress testified that he had no independent recollection of the accident at issue. Immediately thereafter, on direct examination, the district court allowed plaintiffs’ counsel to introduce the Crash Report (in its redacted form) into evidence and Cress reviewed the document on the stand. After a series of questions that tested his memory, Cress again stated that he had no recollection independent of his notations on the Report. In the final matter on Officer Cress’s testimony, we find no error in the district court’s preventing him from offering his opinion at trial. Cress was not present at the time of the accident and repeatedly testified that he had nothing to add to the record that wasn’t already admitted in his Report. The district court, therefore, properly limited the Officer’s testimony pursuant to the Federal Rules of Evidence, Article VII, Opinions and Expert Testimony, and Article VIII, Hearsay. Appellants next complain that the district court erred in admitting two photographs that depicted the damage suffered by Harrington’s vehicle. This issue, however, is not available for appellate" }, { "docid": "5434839", "title": "", "text": "the evidence was sufficient for the submission to the jury of each theory of the plaintiffs’ case, we now turn to Ford’s argument that the court erred in excluding certain photographs from evidence. The disputed photographs were of the Rudolph chassis and were taken after Flxible had manufactured it into a panel truck. Ford offered them in an attempt to show the jury how various parts of the Rudolph chassis appeared. The district court refused to admit them because they did not depict the Rudolph chassis as it existed at the time of the accident but showed instead a completed vehicle that differed considerably from the chassis’s appearance when the accident occurred. The court applied Fed.R.Evid. 403 and balanced “the probative value of and need for the evidence against the harm likely to result from its admission.” Advisory Committee Notes to Rule 403, 28 U.S.C.A. Rules of Evidence at 102 (West 1975). After an extensive and exhaustive consideration, which occupies over forty pages of the record, Record, vol. III, at 438-80, the court concluded that the photographs might confuse or mislead the jury to the prejudice of the plaintiffs. The court’s ruling was by no means an abuse of its broad discretion under rule 403, and we refuse to disturb it by granting a new trial. See United States v. Johnson, 558 F.2d 744, 746-47 (5th Cir. 1977). V We have rejected each of the arguments Ford has advanced in this appeal. The district court was correct in denying the alternative motions for judgment n. o. v. and new trial. Accordingly, the judgment is AFFIRMED. . Flxible-was named by Ford as a third party defendant to this action, but the district court granted Flxible’s motion to dismiss Ford’s third party complaint on September 5, 1975. Record, vol. I, at 91. Ford has not appealed this ruling. . We are unable to tell from the record whether the parties or the district court considered submitting this case to the jury for a special verdict rather than the mere general one it employed. See Fed.R.Civ.P. 49(a). The court was presented with complicated" }, { "docid": "21395677", "title": "", "text": "asserts that Young’s abandoned claim for trade secret misappropriation indicates that the particular plastic grades were treated by Young as not generally known to the public. If the particular grades were secrets held by Young, they were certainly not commercially valuable secrets in light of the industry’s use of those grades as a general solution for this particular application. We therefore reverse with respect to the best mode issue. V Although Young preserved the issue of best mode on appeal with its objection to the court’s jury instruction, it did not do so with respect to the question of obviousness of the ’547 and ’679 patents. As a result, Young may not challenge on appeal the sufficiency of the evidence underlying presumed jury findings of fact regarding obviousness. See Jurgens, 927 F.2d at 1557, 18 USPQ2d at 1035. We have carefully reviewed the record on appeal. In light of the unassailability of the jury’s presumed findings of fact, we cannot say that the court’s legal conclusion of obviousness is erroneous. VI Young next asserts that the district court committed reversible error by admitting into evidence a model of the preferred embodiment from a prior art patent to one Thiedemann. Young contends the model lacked many parts necessary for the operation of the device. On this point, the district court did not err. Demonstrative evidence such as the Thiedemann model may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403. Such a determination is within the trial court’s considerable discretion. Westcott v. Crinklaw, 68 F.3d 1073, 1077 (8th Cir.1995). Young does not allege that the model misrepresented the Thiedemann embodiment in any way other than oversimplifying it. Nor does Young allege that it did not have ample opportunity to cross-examine the witnesses that relied on the model in an effort to lessen the model’s evidentiary weight. We therefore see no error in the trial court’s discretionary decision. In conclusion, we" }, { "docid": "21395678", "title": "", "text": "the district court committed reversible error by admitting into evidence a model of the preferred embodiment from a prior art patent to one Thiedemann. Young contends the model lacked many parts necessary for the operation of the device. On this point, the district court did not err. Demonstrative evidence such as the Thiedemann model may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403. Such a determination is within the trial court’s considerable discretion. Westcott v. Crinklaw, 68 F.3d 1073, 1077 (8th Cir.1995). Young does not allege that the model misrepresented the Thiedemann embodiment in any way other than oversimplifying it. Nor does Young allege that it did not have ample opportunity to cross-examine the witnesses that relied on the model in an effort to lessen the model’s evidentiary weight. We therefore see no error in the trial court’s discretionary decision. In conclusion, we affirm the district court’s summary judgment of no literal infringement, the jury’s finding of noninfringement under the doctrine of equivalents, the legal conclusion of obviousness, and the court’s admission of the Thiedemann model. We reverse with respect to the finding of a best mode violation. No costs. AFFIRMED-IN-PART and REVERSED-IN-PART. .Jurgens involved a party's failure to move for a directed verdict and the district court's subsequent rejection of the party’s motion for JNOV. In 1991, Rule 50 was amended, by which the phrase \"judgment as a matter of law” replaced \"directed verdict” and “renewed motion for judgment as a matter of law” replaced \"motion for judgment n.o.v.” The changes were semantic only and had no effect on the legal standards for each motion. See Fed.R.Civ.P. 50 advisory committee's note. . The other asserted claims each contain a similar limitation. All call for an aperture or receiving means at the front, or distal end, of the head. . The parties do not dispute the court’s finding that the \"receiving means” is the aperture 11, shown in" }, { "docid": "9780324", "title": "", "text": "defendants cannot prevail on this ground. The district court properly admitted into evidence the photographs seized at Laidback Records. 7. Song Lyrics At trial, the Government introduced “One Life 2 Live,” a compact disc recorded by the CCA rap group; a music video made by the CCA rap group; and the lyrics to “COKE,” a song from the “One Life 2 Live” CD. The district court admitted the CD, the music video and the song-lyrics over the defendants’ objections. Specifically, the defendants objected to these items on relevance grounds and, later, objected to the song lyrics on Rule 403 grounds. In its oral rulings on the objections, the district court stated that the evidence “of the jargon that’s pervasive in the drug trade” would aid the jury. Tr.V at 174. On appeal, the defendants contend that the “COKE” song lyrics should not have been admitted at trial because the danger of unfair prejudice from their admission outweighed their probative value. We review this claim for abuse of discretion. We have held in the past that rap lyrics, because they reflect “urban life” and “the reality around [the song’s] author,” can be relevant to drug crimes. United States v. Foster, 939 F.2d 445, 456 (7th Cir.1991). In this case, the lyrics were possibly of some help to the jury in assessing the evidence. However, the possible prejudicial value of these song lyrics certainly gives us pause. Nonetheless, regardless of whether the district court was in error in overruling the defendants’ Rule 403 objection to the song lyrics, we shall not overturn its ruling because any error that resulted from the admission of the lyrics was harmless. See Farmer, 924 F.2d at 654. The district court admitted the song lyrics in order for them to be interpreted by a federal agent with specialized knowledge of the drug trade, and it appears that the lyrics were used in that manner at trial. Moreover, it was made clear at trial that the authorship of the song was unknown; it was not attributed to any of the defendants. We conclude that the admission at trial" }, { "docid": "12925311", "title": "", "text": "the potential to distract the jury from the issue it was supposed to decide. But we also hold that the statement had material probative value. It suggested that McCann was conscious of his guilt and wanted to intimidate the principal witness against him. See Rocha, 916 F.2d at 241. On the balance, we cannot say that the district court abused its discretion by holding that the material probative value outweighed the risk of unfair prejudice. Therefore, we hold that the district court did not err by refusing to exclude the death threat evidence. III. Photographic Exhibit During the trial, the prosecution called Officer Steven Gaudet to rebut the testimony of Phillips. Officer Guadet’s testimony was offered to show that Phillips had not arrived in the park to watch the neighborhood youths play basketball as early as he had testified that he had, because Officer Gaudet had questioned him several blocks away in connection with a drug investigation about an hour before McCann’s arrest. During Officer Gaudet’s direct examination, the Government introduced a photograph of Phillips (who was no longer in the courtroom) into evidence for Officer Gaudet to use in identifying him. The photograph was printed on a sheet of paper above a written list of identification details arguably like what one might think are typically found in police records. The writing on the photograph also included the words “Profile on Mitchell Phillips Source: Orleans CSO, LA.” McCann objected to the admission of the written information, requesting that the text be redacted from the photograph to allow Officer Gaudet to identify Phillips without the danger of unfairly prejudicing the defense by implying that Phillips had been arrested or was otherwise known to the police. The district court overruled the objection, and McCann argues on appeal that this was reversible error. A Standard of Review We review a district court’s evidentiary rulings for abuse of discretion. Clark, 577 F.3d at 287. If we find that an abuse of discretion occurred, we apply the harmless error doctrine. Id. Thus, the district court’s decision to admit the photograph without redacting the text is" }, { "docid": "12925312", "title": "", "text": "(who was no longer in the courtroom) into evidence for Officer Gaudet to use in identifying him. The photograph was printed on a sheet of paper above a written list of identification details arguably like what one might think are typically found in police records. The writing on the photograph also included the words “Profile on Mitchell Phillips Source: Orleans CSO, LA.” McCann objected to the admission of the written information, requesting that the text be redacted from the photograph to allow Officer Gaudet to identify Phillips without the danger of unfairly prejudicing the defense by implying that Phillips had been arrested or was otherwise known to the police. The district court overruled the objection, and McCann argues on appeal that this was reversible error. A Standard of Review We review a district court’s evidentiary rulings for abuse of discretion. Clark, 577 F.3d at 287. If we find that an abuse of discretion occurred, we apply the harmless error doctrine. Id. Thus, the district court’s decision to admit the photograph without redacting the text is only reversible if it affected McCann’s substantial rights. Id. B. Analysis Although he did not cite it by number, the basis for McCann’s objection to the text below the photograph appears to have been Rule 403. On appeal, he argues that the text’s probative value was heavily outweighed by the danger that it would have an unfairly prejudicial effect. He cites several of our opinions that hold that there is a great risk of unfair prejudice from evidence that suggests to the jury that uncharged criminal conduct occurred. United States v. Aragon, 962 F.2d 439, 442 (5th Cir.1992); United States v. Beechum, 582 F.2d 898, 909-14 (5th Cir.1978) (en banc). However, these opinions all dealt with instances in which the defendant had committed the uncharged criminal conduct at issue. Phillips was merely a defense witness, not the defendant. The Government contends that the unfair prejudice that could have been caused by the text was minimal. It notes that the district court stated it saw nothing wrong with the biographical information. It argues that the probative" }, { "docid": "17722826", "title": "", "text": "record at the time the drawings were admitted into evidence. Finding no contemporaneous objections to the engineering drawings in the record, we review for plain error. McEwen, 926 F.2d at 1645. Considering that virtually all of the drawings were produced substantially prior to trial and only one was produced at the latest one week prior to trial, the admission of the engineering drawings does not meet the stringent plain error standard. Additionally, we note that plaintiffs had a full opportunity to engage in cross-examination concerning these drawings and the fuel system model to alert the jury to any inaccuracies. Finally, plaintiffs appeal the trial court’s admission of the defendant’s model of the airplane’s fuel system and evidence of the tests performed on the model prior to trial. Although plaintiffs made no objection at the time the model was introduced at trial, they did present an objection to the court at a pretrial hearing. Evidentiary rulings made over contemporaneous objections will be upheld on appeal unless they constitute an abuse of discretion. McEwen, 926 F.2d at 1544. We find nothing in the record to indicate that the model was flawed so as to present any serious problems. Considering this fact and considering that the model was presented for demonstrative purposes, we find the district court did not abuse its discretion in admitting the model. Finding no contemporaneous objection to the admission of the model tests, we review their admission for plain error. The admission of the model tests does not meet the stringent plain error standard. III. Motion for a New Trial Plaintiffs argue that we should reverse the trial court’s denial of their motion for new trial. They argue that the trial court’s ruling was error because the jury verdict for defendant is against the weight of the evidence and that we should remand for a new trial. Generally we review a trial court’s denial of a motion for new trial only for an abuse of discretion. See Brown v. McGraw-Edison Co., 736 F.2d 609, 616 (10th Cir.1984) (verdict must be clearly, decidedly, or overwhelmingly against the weight of evidence)." }, { "docid": "22999164", "title": "", "text": "Starks assert that the district court improperly admitted an “unduly suggestive array of photographs.” Over objection, the court admitted a folder consisting of Lewis’ and Starks’ booking photographs stapled alongside photographs of the guns and cocaine discovered near them. Lewis and Starks contend, and with some merit, we think, that the array of photographs was unfairly prejudicial because it suggested an as-yet unproven connection between them and the contraband. That is, the arrays depicted the ultimate legal conclusion, that Lewis and Starks possessed cocaine and firearms, that was the government’s burden to prove. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. Relevant evidence is generally admissible. Fed.R.Evid. 402. However, a judge may exclude otherwise relevant evidence if “its probative value is substantially outweighed by the danger of unfair preju-dice_” Fed.R.Evid. 403. We review a trial court’s Rule 401/403 balancing test for an abuse of discretion, and only in “extraordinarily compelling circumstances” will we reverse a district court’s “on-the-spot judgment” concerning the probative value and unfair effect of the proffered evidence. United States v. Rodríguez-Estrada, 877 F.2d 153, 155-56 (1st Cir.1989). While we are concerned with the government’s trial tactic, we find that the error, if any, was harmless in light of the strong ease presented by the government. United States v. Ruiz-Batista, 956 F.2d 351, 352-53 & n. 2 (1st Cir.), cert. denied, — U.S. -, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992) (noting that reversal is inappropriate where other evi dence of guilt renders an evidentiary error harmless). Here, the photos were relevant. They show the condition of the evidence when it was recovered. However, we do not conclude whether the danger of unfair prejudice presented by the photographic array substantially outweighed its probative value because the error, if any, in admitting the array was ultimately harmless. The array may have prematurely connected Lewis and Starks to the contraband. However, the jury was informed of how the" }, { "docid": "14635376", "title": "", "text": "to the crack possession count. Thomas was sentenced to 235 months’ imprisonment and now appeals. II. ANALYSIS Thomas’s principal challenge on appeal is that two pieces of evidence, a photograph and evidence relating to prior convictions, were erroneously admitted at trial. A. Admissibility of the Photograph of Thomas’s Tattoo Prior to trial, Thomas moved to have a photograph taken of one of his tattoos ruled inadmissible. The tattoo was of two revolvers crossed, with blood dripping around them and the words “Made Nig-ga’s” above them. After the government agreed to redact the blood and words from the photograph, leaving just the images of the guns, the district court ruled that the photograph was admissible, under Federal Rule of Evidence 403, finding that it “cannot say that the probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues.” We review evidentiary decisions for an abuse of discretion. See United States v. Williams, 216 F.3d 611, 614 (7th Cir.2000). Rule 403 requires district courts to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” When considering the prejudicial nature of evidence under Rule 403, we have noted that “most relevant evidence is, by its very nature, prejudicial, ... that evidence must be unfairly prejudicial to be excluded.” United States v. Curry, 79 F.3d 1489, 1496 (7th Cir.1996) (quoting United States v. Pulido, 69 F.3d 192, 201 (7th Cir.1995)) (emphasis in original). Evidence is unfairly prejudicial “if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.” Id. (quoting Pulido, 69 F.3d at 201). The balancing of probative value and prejudice is a highly discretionary assessment, and we accord the district court’s decision great deference, only disturbing it if no reasonable person could agree with the ruling. See United States v. Kevin Foster, 30 F.3d 65, 68 (7th Cir.1994). We have found tattoos admissible when the tattoo was used to identify the defendant, see, e.g., United States v. Galati, 230" }, { "docid": "22435631", "title": "", "text": "citation omitted). Thus, Fields cannot show that the error affected his substantial rights. k. PHOTOGRAPHS OF MURDER VICTIM Fields’s fourth claim of trial error is that the district court erroneously admitted into evidence thirty-two photographs of the victim’s body. Fields contends that the photos were extraordinarily prejudicial and had minimal, if any, probative value. a. Rule IOS and Standard of Review The governing law and our limited standard of review bear emphasis. Federal Rule of Evidence 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” One purpose of Rule 403 is to prevent evidence from “inducing decision on a purely emotional basis.” Fed.R.Evid. 403 (Advisory Committee Notes). However, to warrant exclusion, the danger of unfair prejudice— on this ground or any other — must substantially outweigh the probative value of the evidence. Accordingly, we have recognized that Rule 403’s scope is narrow. “[T]he application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” United States v. Pace, 10 F.3d 1106, 1116 (5th Cir.1993). In light of these principles, we will not lightly second-guess a district court’s decision to admit relevant evidence over a Rule 403 objection. Although reviewing courts use a great variety of verbal formulae to express this fact, all agree that we must afford an especially high level of deference to district courts in such circumstances. Thus, a district court’s decision on Rule 403 grounds is disturbed “rarely” and only when there has been “a clear abuse of discretion.” United States v. Maggitt, 784 F.2d 590, 597 (5th Cir.1986); see United States v. Caldwell, 820 F.2d 1395, 1404 (5th Cir.1987). b. The Photographs We have independently examined the photos at issue. They fall into two broad categories: nineteen photos taken at the crime scene and thirteen taken in connection with the autopsy. Many of the crime scene photos show the victim’s body from various angles and from various degrees of proximity. In" }, { "docid": "22999163", "title": "", "text": "we have previously noted, “[i]t is not enough to mention an argument in the most skeletal way, leaving the court to do the counsel’s work, create the ossature for the argument, and put flesh on its bones.” Id. Moreover, and more importantly, Starks’ argument is factually infirm. While Starks contends that his trial strategy was to discredit the informant by demonstrating that he had a monetary incentive, he neglected to pursue this theory during his cross-examination of all the police officers who took the stand. Not only does this undermine Starks’ contention that this was his trial strategy, it also demonstrates that the government’s pretrial statements might have been factually accurate. The government stated that Brockton Police occasionally gave the informant “a few bucks here and there.” Thus, by failing to explore this line of questioning thoroughly, Starks did not demonstrate that the government’s pretrial statement was indeed false. In sum, we find that Starks has asserted no factual or legal proposition that satisfies the plain error standard. VII. Admission of the photographs Lewis and Starks assert that the district court improperly admitted an “unduly suggestive array of photographs.” Over objection, the court admitted a folder consisting of Lewis’ and Starks’ booking photographs stapled alongside photographs of the guns and cocaine discovered near them. Lewis and Starks contend, and with some merit, we think, that the array of photographs was unfairly prejudicial because it suggested an as-yet unproven connection between them and the contraband. That is, the arrays depicted the ultimate legal conclusion, that Lewis and Starks possessed cocaine and firearms, that was the government’s burden to prove. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. Relevant evidence is generally admissible. Fed.R.Evid. 402. However, a judge may exclude otherwise relevant evidence if “its probative value is substantially outweighed by the danger of unfair preju-dice_” Fed.R.Evid. 403. We review a trial court’s Rule 401/403 balancing test for an abuse" }, { "docid": "22901010", "title": "", "text": "of Harvester. When the plaintiff’s counsel requested the jury to “send a message” there was no objection from Harvester, therefore we consider only whether there was plain error. In view of the context in which the statement was made, and the court’s lengthy instructions to the jury making clear that it was to decide the case based solely upon the evidence, we cannot say that plain error was committed. In summary, none of the comments made by the district court or plaintiff’s counsel, individually or collectively, requires a new trial. E. Finally, Harvester argues that two photographs depicting Dixon’s injuries admitted by the district court were so highly prejudicial and inflammatory that it is entitled to a new trial on all issues. The color photographs were taken for medical purposes by physicians at the George County Hospital. Mrs. Dixon offered the photographs to show that Dixon could not have stopped the crawler tractor after the accident, and to indicate the severity of his injuries. After an in camera inspection, the district court excluded the photographs it considered most prejudicial, but admitted the two at issue. These two revealed Dixon’s abdominal area in its repaired condition. Although the photographs certainly were prejudicial, they also were relevant to demonstrate the nature of Dixon’s injuries. We cannot say that the prejudice of the evidence substantially outweighed its probative value. Fed.R.Evid. 403. The district court did not abuse its sound discretion in admitting only these two photographs. IV. In addition to the alleged evidentiary errors and prejudicial comments, Harvester contends that the district court should have granted its alternative motion for a new trial based upon insufficiency of the evidence. We disagree. The decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of that discretion or misapprehension of the law. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.1982); Evers v. Equifax, Inc., 650 F.2d 793, 796 (5th Cir.1981). This deferential standard of review applies especially in cases in which motions" }, { "docid": "9780323", "title": "", "text": "the defendants objected to the photographs on relevance grounds, and the district court overruled the objection. On appeal, the defendants submit that the district court abused its discretion by failing to exclude the photographs on relevance grounds. For the first time on this appeal, they raise Rule 403 grounds. Turning to the relevance objection, the district court did not abuse its discretion. The photographs established a connection among the defendants and therefore were relevant because they had the tendency to make the defendants’ participation in the conspiracy more likely. With respect to the alleged Rule 403 error, which we review only for plain error, we conclude that there was no “actual miscarriage of justice,” Carroll, 871 F.2d at 692, from the admission of the photographs. The photographs were indeed probative of the defendants’ associations with other conspirators, and the danger of prejudice from the photographs was minimal in light of the fact that numerous other photographs admitted into evidence at trial showed the defendants associating with other gang members and flashing gang symbols. Therefore, the defendants cannot prevail on this ground. The district court properly admitted into evidence the photographs seized at Laidback Records. 7. Song Lyrics At trial, the Government introduced “One Life 2 Live,” a compact disc recorded by the CCA rap group; a music video made by the CCA rap group; and the lyrics to “COKE,” a song from the “One Life 2 Live” CD. The district court admitted the CD, the music video and the song-lyrics over the defendants’ objections. Specifically, the defendants objected to these items on relevance grounds and, later, objected to the song lyrics on Rule 403 grounds. In its oral rulings on the objections, the district court stated that the evidence “of the jargon that’s pervasive in the drug trade” would aid the jury. Tr.V at 174. On appeal, the defendants contend that the “COKE” song lyrics should not have been admitted at trial because the danger of unfair prejudice from their admission outweighed their probative value. We review this claim for abuse of discretion. We have held in the past that" }, { "docid": "21549707", "title": "", "text": "North Dakota Supreme Court held that these instructions were sufficient without a negative state-of-the-art instruction, using them as a model will insure that the jury instructions, as a whole, adequately state North Dakota law. III. The District Court misapplied North Dakota’s discovery rule when it failed to instruct the jury that there must be some harm, such as contamination, beyond the mere discovery of the presence of asbestos, for the statute of limitations to begin to run. The District Court also erred in excluding key pieces of evidence offered by MDU: the 1943 Cellufloc trademark and the summary of the “Asbestosis” article, exhibit P-83A. Therefore, we reverse and remand for a new trial in accordance with this opinion. . Cellufloc is a paper and wood-pulp product that Grace ultimately used to replace the asbestos in Monokote in 1973. . We do not address MDU's third evidentiary claim — that the District Court improperly admitted into evidence an article from “Science” magazine. Any error from this admission may have been corrected by the District Court’s permitting MDU to introduce its own articles in response. In any event, the District Court will have an opportunity to reassess the article's admissibility on remand. . MDU alleges that the trial was fundamentally unfair because Grace was allowed to show a blow-up photograph of MDU's CEO while MDU was prevented from doing the same with Grace’s CEO. Certainly, this type of demonstrative evidence is unnecessary on either side. Additionally, MDU argues that, dining cross-examination, the District Court allowed Grace to present evidence as to MDU's size — to show MDU's knowledge of asbestos hazards — but prevented MDU from making reference to Grace's size. Grace’s size is, of course, irrelevant to anything but punitive damages; by the same token, the relevancy of MDU’s size to this case is dubious at best. Finally, MDU argues that the Court improperly allowed Grace to discuss MDU’s gravel pit, acquired one month before trial, which Grace claimed was an asbestos mine. At one point, the Court itself referred to this pit as an \"asbestos mine.” Regardless of whether this" }, { "docid": "22589860", "title": "", "text": "133, 140 (5th Cir.1995); London v. MAC Corp., 44 F.3d 316, 318 (5th Cir.1995). In other words, the district court does not abuse its discretion if the error is merely harmless. Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 271 (5th Cir.1994). We “will not disturb an evidentiary ruling, albeit an erroneous one, unless it affects a substantial right of the complaining party.” Polythane Sys. Inc. v. Marina Ventures Int'l Ltd., 993 F.2d 1201, 1208 (5th Cir.1993), cert. denied, 510 U.S. 1116, 114 S.Ct. 1064, 127 L.Ed.2d 383 (1994); see also Edmonds v. Illinois Cent. Gulf R. Co., 910 F.2d 1284, 1287 (5th Cir.1990). A. Limits on Dr.. Reed’s Exhibits and Testimony. Deere argues that the district court abused its discretion when, after trial had commenced, it excluded the videotape prepared by Deere’s expert, significantly limited his testimony, and limited the number of photographs to be introduced. Deere also asserts that the exclusion and limitations adversely affected its trial strategy. When arguing their motion in limine, the plaintiffs in this case argued that Dr. Walter Reed, a mechanical engineer and accident reconstruction expert, was not an equal substitute for Deere’s originally listed trial expert, Ronald Brass, an expert in the field of agricultural engineering. The district court’s minute entry rejected, without explanation, the plaintiffs’ arguments to restrict Dr. Reed’s testimony to the same scope as Brass’s testimony. The minute entry also noted the court’s denial of the plaintiffs’ oral motion to exclude the models and exhibits prepared by Dr. Reed. Though the plaintiffs’ challenged the reliability of the models, the court ruled that “alter considering the arguments of counsel, I conclude that the issues raised are properly addressed on cross examination.” The court then responded to plaintiffs’ arguments of prejudice by offering to continue once more the trial date, which the plaintiffs rejected. After hearing some of Dr. Reed’s testimony during trial, the district court limited his testimony to a discussion of only one of ten models and excluded Dr. Reed’s videotape. The court found that Dr. Reed’s conclusions were not sufficiently grounded in scientific methodology or the facts" }, { "docid": "11549346", "title": "", "text": "of Mendelson’s death on the basis of autopsy records that he had reviewed. The United States also introduced an autopsy report, and a number of enlarged photographs from the autopsy, which were placed on an easel near the jury box; the United States displayed the photographs again during closing arguments. Rezaq had filed a motion in limine seeking , to exclude this evidence as overly prejudicial. Federal Rule of Evidence 403 permits the district court to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. The district court accordingly weighed the probative value of this evidence against the danger of unfair prejudice. As to probative value, the district court found the evidence relevant to both the “force or intimidation” element of the statute and the “death results” element. The district court found that the autopsy reports were highly .probative as to the fact of Rogenkamp’s death, as to its cause, and as to “the fact that the killings were intentional.” It found that the autopsy photographs were likewise “highly probative” as to the first two of these factors, the fact and cause of death. In weighing the prejudicial effect of this evidence, the district court found that the autopsy reports had no prejudicial effect, as they were “straightforward and factual,” and nothing in them was likely to inflame the jury. It observed that some of the autopsy photographs similarly presented no danger of prejudice; others it found were “more graphic in nature,” but it concluded that, “[i]n light of the highly probative value of these particular photographs,” the danger of unfair prejudice did not substantially outweigh the evidence’s probative value. Rezaq asserts that the district court erred in admitting this evidence. “We review Rule 403 determinations most deferentially and will reverse only for ‘grave abuse’ of the trial court’s discretion.” United States v. Johnson, 46 F.3d 1166, 1171 (D.C.Cir.1995) (quoting United States v. Manner, 887 F.2d 317, 322 (D.C.Cir.1989)). Here, although we might not have admitted at least one of the most grisly photographs into evidence, we cannot say that the district" }, { "docid": "4441571", "title": "", "text": "began to discuss abstract legal principles that would be part of the court’s jury charge. Concerned that defense counsel would squander the remaining time on such abstractions, the court indicated that counsel should focus on arguing the facts of the case instead of stating rules of law. However, the court did not prevent counsel from making factual arguments in terms of the applicable law. The court recalls that after its admonition defense counsel did discuss the controlling legal principles as they related to the facts of the case. The court provided appropriate instruction to the jury about the meaning of the elements of the crime charged, and therefore any limitation on counsel’s argument caused no prejudice to the defendant. Consequently, the court finds that it did not abuse its discretion. (b) Alleged Evidentiary Errors (i) Photographs of the deceased. The court admitted into evidence two Polaroid color snapshots of the deceased, one showing her as she lay on the roadside shortly after her body was discovered and the other showing her face. Together, these two photographs identified the corpus delicti, indicated the location of the deceased’s wounds, and indicated the position of her body. The government authenticated the photographs with the testimony of Donna Lambert, who discovered Nancy Linnell’s body shortly after the shooting. She indicated that the photographs fairly and accurately depicted the deceased’s body as she saw it in the road. The court found that testimony sufficient to establish that the photographs were what the government claimed them to be — depictions of Nancy Linnell’s body as it was found. See Fed.R.Evid. 901(a); see also United States v. McNair, 439 F.Supp. 103, 105 (E.D.Pa.1977), aff'd mem., 571 F.2d 573 (3d Cir.), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978). The defendant asserted that the prejudicial effect of the photographs outweighed their probative value. The court may exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value. Fed.R.Evid. 403. However, the court refused to exclude the photographs because it found that they were the least inflammatory of those the government had" }, { "docid": "22050674", "title": "", "text": "by 18 U.S.C. § 2252A(a)(5)(B). Because the district court could have found that these pictures had some tendency to make Smith’s defense less probable and the statutory requirements more probable, we do not find that that court abused its discretion in finding them relevant under Federal Rule of Evidence 401. We also cannot say that the district court abused its discretion in finding that the probative value of the questioned evidence was not substantially outweighed by any potential for unfair prejudice, see Fed.R.Evid. 403, particularly in light of the presumptions in favor of admissibility stated above. Smith contends that the naked pictures of himself, pictures of other women, and pictures of Smith with other women were likely to inflame the jurors’ emotions and prevented a level-headed evaluation of all the evidence. That is a permissible conclusion but not a necessary one. The jury might also have been able to evaluate the evidence for what it was — ■ photographs from within defendant’s lock-box that tended to establish identity, knowledge, and sexual content. That the nature of the crime itself, and therefore the nature of the evidence tending to prove it, is emotionally charged does not mean that the prosecution must be deprived of its most probative evidence. This is particularly true when the district court, as here, offers limiting instructions as to the proper purpose of admitted evidence. Thus, when we maximize the probative value discussed above and minimize any prejudicial impact, we cannot conclude that the district court clearly abused its discretion in admitting the evidence. 2. Plain Error Smith alleges that the following evidence should not have been admitted despite his failure to object at trial: (1) Smith’s inmate discharge identification card; (2) repeated references to the fact that Smith was and is incarcerated; (3) an “unsanitized” (non-redacted) recording and transcript of a phone call made by Smith, while incarcerated, to his mother; (4) Officer Mayo’s testimony that the pictures he found were pornographic and of young girls; (5) testimony regarding the number of photographs found in the lockbox; and (6) testimony about a particular photograph depicting two" } ]

[ { "docid": "20563480", "title": "", "text": "therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.” Fed.R.Crim.P. 41(e), 18 U.S.C. .That section reads: ' “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109. . Cf. United States v. Skeeters, 122 F.Supp. 52, 57 (S.D.Cal.1954); United States v. Warrington, 17 F.R.D. 25, 29 (N.D.Cal.1955). . See Rios v. United States, 364 U.S. 253, 260-262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). Cf. Killian v. United States, 368 U.S. 231, 244, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). We do not imply that the Government may with impunity fail to produce its witnesses at the pre-trial determination of the motion to suppress* Had the pre-trial judge granted the motion, Rule 41(e) would have prevented the Government from introducing the suppressed evidence at trial. See United States v. Stephenson, 96 U.S.App.D.C. 44, 45, 223 F.2d 336, 337 (1955) (dictum). Cf. United States v. Koenig, 290 F.2d 166, 173-174 (5th Cir. 1961), affirmed, DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (dictum: “exceptional circumstances\" might require trial court to admit evidence previously suppressed). .The fourth amendment to the United States Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * Rule 41(c) requires that the warrant “shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof.” Fed.R.Crim. P. 41(c), 18U.S.C. . See King v. United States, 282 F.2d 398, 400 (4th Cir. 1960). . Private Perkins testified at the pre-trial hearing that he learned about some of Private Henson’s observations when the latter recounted them to him in" } ]

[ { "docid": "910569", "title": "", "text": "on the discussion above, Whitney’s claim falls far short of establishing the existence of intentionally or recklessly false statements, and we reject it without further comment. III. Section 3109 Whitney next claims that the district court should have suppressed the evidence because the entries into the two houses searched violated 18 U.S.C. § 3109. Section 3109 codifies a tradition embedded in Anglo-American law and declares the reverence which the law attaches to an individual’s right of privacy in his house. Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332 (1958). The section reads as follows: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109. This proscription, however, has been limited by exceptions. It is abundantly clear that the existence of exigent circumstances may excuse total noncompliance with § 3109. United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976). See, e. g., Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Fluker, 543 Fid 709 (9th Cir. 1976); United States v. Scott, 520 F.2d 697 (9th Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976); United States v. Busta- mante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974); United States v. Smith, 456 F.2d 1236 (9th Cir. 1972) (remanded on other grounds and appealed to this court, 467 F.2d 283), cert. denied, 410 U.S. 912, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); United States v. Cisneros, 448 F.2d 298 (9th Cir. 1971); Gilbert v. United States, 366 F.2d 923 (9th" }, { "docid": "16370546", "title": "", "text": "on him at the time of his arrest. Even if the taint was not dissipated by the time it reached the gun, however, appellant has no standing to complain of it. Alderman v. United States, supra note 6. . When defense counsel made his motion to suppress, he apparently did not know that the arrest had been made pursuant to a warrant. He had learned of the warrant, however, by the time of the hearing on his motion. . The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he. is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. See also Masiello v. United States, 113 U.S.App.D.C. 32, 304 F.2d 399 (1962); Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961). . The Rule says only that if the arresting officer is not in possession of the warrant, “he shall then” give the required information. (Emphasis added.) Whether “then” means “at that time” or “subsequently” or nothing at all, it does not in terms make the information a condition precedent to a valid arrest. . See Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 20 L.Ed.2d 828 n. 8 (1968); Ker v. California, 374 U.S. 23, 39-40, 83 S.Ct. 1623, 10 L.Ed. 726 (1963) (opinion of Clark, J.); id. at 47, 83 S.Ct. at 1636 (opinion of Brennan, J.); Gilbert v. United States, 366 F.2d 923, 931-932 (9 Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed 1370 (1967). . Cf. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Terry v. Ohio, 392 U.S. 1, 27-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); id. at 33, 88 S. Ct. at 1886 (opinion of Harlan, J.). BURGER, Circuit Judge (concurring in part and dissenting in part): I accept the Government’s concession in cases numbered 21,427 and 21,437" }, { "docid": "3733882", "title": "", "text": "then drove to a service station where officers arrested him. At the time of his arrest, Touch had only three dollars on his person. Thus, through surveillance and a recently completed undercover drug transaction, police were able to corroborate much of the information obtained from the first informant. Under all these circumstances viewed in a common-sense manner, we agree with the district court that the state court had a substantial basis for concluding probable cause existed. Defendants next argue the district court should have suppressed the evidence because law enforcement officials failed to announce their purpose before entering each unit in the duplex. See 18 U.S.C. § 3109. We disagree. Under section 3109, an officer executing a search warrant may break open a door or other part of a house “if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” Id. While in general an officer must announce his authority and purpose before breaking open a door, several exceptions exist to this rule. See Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S.Ct. 1755, 1759 n. 8, 20 L.Ed.2d 828 (1968) (referring to the exceptions stated in Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (Brennan, J., concurring and dissenting), as being applicable to section 3109 cases). Announcement of purpose is excused when it constitutes a useless gesture because the “facts known to [the] officers * * * justify them in being virtually certain * * * the [persons to be apprehended] already know[] their purpose.” Miller v. United States, 357 U.S. 301, 310, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958); see United States v. Kulcsar, 586 F.2d 1283, 1286 (8th Cir.1978). In addition, announcement of purpose is excused when the officers reasonably believe the persons to be apprehended might destroy evidence during a delay in police entry. See Ker, 374 U.S. at 47, 83 S.Ct. at 1636 (Brennan, J., concurring and dissenting); Kulcsar, 586 F.2d at 1287. Here, in" }, { "docid": "3733883", "title": "", "text": "door, several exceptions exist to this rule. See Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S.Ct. 1755, 1759 n. 8, 20 L.Ed.2d 828 (1968) (referring to the exceptions stated in Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (Brennan, J., concurring and dissenting), as being applicable to section 3109 cases). Announcement of purpose is excused when it constitutes a useless gesture because the “facts known to [the] officers * * * justify them in being virtually certain * * * the [persons to be apprehended] already know[] their purpose.” Miller v. United States, 357 U.S. 301, 310, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958); see United States v. Kulcsar, 586 F.2d 1283, 1286 (8th Cir.1978). In addition, announcement of purpose is excused when the officers reasonably believe the persons to be apprehended might destroy evidence during a delay in police entry. See Ker, 374 U.S. at 47, 83 S.Ct. at 1636 (Brennan, J., concurring and dissenting); Kulcsar, 586 F.2d at 1287. Here, in executing the warrant, the officers knocked, identified themselves, and indicated the occupants should open the door. The officers, however, did not announce their purpose or refer to a search warrant. When no response came from inside the duplex, the officers broke the locked doors down to gain entrance. Because the officers did not announce their purpose before entering, we must determine whether, under the facts of this case, their actions come within an exception to the rule. After Touch was arrested but before the warrant was executed in this case, a police officer watched the duplex for several hours. He observed two Jamaican males, later identified as defendants Tracy and Taylor, carry several lengthy boards into the duplex. The men carried the boards into the duplex intermittently, spending some time in the house before returning outside. From his past experience with Jamaican drug houses, the officer then believed the men were fortifying the duplex to prevent entry by police. Further, during this period, defendants Anderson and Whyte arrived at the duplex and went inside with" }, { "docid": "898215", "title": "", "text": "that none of the detectives or federal agents announced, prior to entering the premises, that they had a warrant to search. However, as soon as Singleton was brought into the kitchen, Detective Costanza read the search warrant, and showed it to the two. He then told them that they could make any phone call they wished, could contact an attorney of their choosing, could have counsel appointed for them if they were destitute and that anything they said could be used against them. “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” The house was searched; eight glas-sine envelopes of heroin were recovered from the living room floor, and additional heroin was found in the toilet. In the basement, the agents found empty glassine envelopes, 65 packages of man-nite, measuring spoons, silk stockings and a playing card, all of which are commonly used in the preparation of heroin for distribution. Appellant would have us invalidate the search and seizure because the agents failed to announce the purpose for which they desired entrance into the premises, prior to forcing open the door. However, the announcement requirement is not without its exceptions. See Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Wong Sun v. United States, 371 U.S. 471, 482-484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Miller v. United States, 357 U.S. 301, 310, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). One such exception is the so-called “useless gesture” rule which has been applied where the arresting officers can be virtually certain that the person denying entrance knew their identity and purpose. See, e. g., Bosley v. United States, 426 F.2d 1257 (D.C. Cir. 1970); Wittner v. United States, 406 F.2d" }, { "docid": "8861703", "title": "", "text": "that the presence of an undercover agent posing as a narcotics buyer in an individual’s home, which is about to be “invaded” by plainclothes arresting officers pursuant to a prearranged signal, does not excuse compliance with 18 U.S.C. § 3109, particularly where that agent maintains his undercover role and does not initiate, commence or cooperate in the arrest. In short, they contend that the ruse vitiates the arrest and seizure. We do not agree. An entry obtained without force by ruse or deception is not a violation of section 3109. See United States v. Beale, 5 Cir., 1971, 445 F.2d 977; Smith v. United States, 5 Cir., 1966, 357 F.2d 486. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) is not to the contrary. AFFIRMED. . 18 U.S.C. § 3109 provides: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. There was no warrant in this case; however, section 3109 is applicable to warrantless searches. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). . See n. 7, 391 U.S. at 590, 88 S.Ct. at 1758, 20 L.Ed.2d at 831." }, { "docid": "1421689", "title": "", "text": "and there was no basis for invalidating the warrant. We find no error in this conclusion. IV. Entry Under the Search Warrant Most reported federal search warrant cases involve warrants issued by federal judicial officers. Frequently, the focus of these cases is on compliance with 18 U.S.C. § 3109 which reads as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. Section 3109 has been described as a codification of the common law. See, e.g., Sabbath v. United States, 391 U.S. 585, 589, 591 n. 8, 88 S.Ct. 1755, 1757, 1759 n. 8, 20 L.Ed.2d 828 (1968) and Rodriguez v. Jones, 473 F.2d 599, 607 (5th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). Actually, it is more than a codification of the common law. If one reads into it certain developing exceptions, it is a definition of the manner of search of a private residence that is reasonable under the Fourth Amendment. United States v. Francis, 646 F.2d 251 (6th Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981). In Francis, we noted: Although the Supreme Court has not addressed the issue many federal courts have, including this Circuit. In some cases the discussion is dictum. In others, the opinion relies on Justice Brennan’s dissent in Ker, [Ker v. California, 374 U.S. 23[, 83 S.Ct. 1623, 10 L.Ed.2d 726] (1963) ] which the Supreme Court itself has never adopted. Though each case by itself is less than compelling, their conclusion has been unanimous: the fourth amendment forbids the unannounced, forcible entry of a dwelling in the absence of exigent circumstances. * He * H* * * Even Justice Brennan’s dissent in Ker recognized exceptions to the constitutional rule in the case of entry into a dwelling where: (1) the persons" }, { "docid": "6398220", "title": "", "text": "Under these circumstances we see no need to remand the proceedings for findings by the trial court. The facts concerning the entry by the agents and police into Gonzales’ apartment are those stated heretofore in this opinion. 18 U.S.C. § 3109 provides as follows : “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” The Supreme Court in the case of Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), held, in effect, that the provisions of § 3109 applied not only to cases in which a warrant had been issued, but to those as well, which rested on probable cause alone. See Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828-(1968). Then in Ker v. California, 374 U.S. 23, 48, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court, both the majority and minority, made it clear that the criteria set out in § 3109 did not in all cases have to be literally fulfilled or carried out to constitute an entry which did not violate the Fourth Amendment, or, for that matter, contravene the statute itself. They disagreed on what exceptions should be recognized. The minority, enunciating the stricter standards, described them in terms of three particular situations, the first of them being, “(1) where the persons within already know of the officers’ authority and purpose.” This and the other two exceptions were later adopted by reference by a majority of the Court in its opinion in Sabbath v. United States, supra, which expressly held that these limited exceptions also applied to § 3109. The first exception is recited in full because it is the only one applicable to the present case. The forcible entry of narcotics agents into a private apartment was the subject of an en" }, { "docid": "16370545", "title": "", "text": "to the welfare of all persons. Accordingly, commentators have urged that the necessary implication of the Fourth Amendment is that any defendant against whom illegally acquired evidence is offered, whether or not it was obtained in violation of his right to privacy, may have the evidence excluded. Id., 89 S.Ct., at 981 (opinion of Fortas, J., dissenting in part). . Id. at 983. . See People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772 (1967). Cf. People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955). . Our holding that appellant cannot object to the fruits of a violation of Frazier’s Fifth Amendment rights disposes of the contention that the identification is an inadmissible fruit of Frazier’s confession. . Supra note 14. The test is whether “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. . Appellant seeks to construct a lengthy trial of taint leading from Frazier’s confession to the gun found on him at the time of his arrest. Even if the taint was not dissipated by the time it reached the gun, however, appellant has no standing to complain of it. Alderman v. United States, supra note 6. . When defense counsel made his motion to suppress, he apparently did not know that the arrest had been made pursuant to a warrant. He had learned of the warrant, however, by the time of the hearing on his motion. . The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he. is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. See also Masiello v. United States, 113 U.S.App.D.C. 32, 304 F.2d 399 (1962); Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961). . The Rule says only that if the arresting officer is not in possession" }, { "docid": "23157401", "title": "", "text": "States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958). . Mr. Justice Clark noted in Iver that the potential destruction of narcotics at the time of arrest presented an exigent circumstance justifying a search without a warrant. 374 U.S. at 42, 83 S.Ct. 1623. The House of Representatives report accompanying the Drug Control Act of 1970, supra, note 3, adopted this reasoning to justify parts of that Act. 1970 U.S.Cong, and Admin.News, pp. 4566, 4591-92. . See also Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). . Further, the analysis for probable cause for an arrest and probable cause for search are basically similar, and therefore cases analyzing searches as well as arrests will be considered. Spinelli v. United States, 393 U.S. 410, 417 n. 5, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). . This piece of information did not come out at the suppression hearing. Agent Ashton so testified at trial. However, because the incident was known to the agents at the time tiiey entered the apartment to make the arrest, we can consider it to establish probable cause. . The judge at the suppression hearing told counsel that if anything revealed by the informer (luring the in camera hearing was prejudicial, lie would reveal it to him immediately. This assurance conformed to this court’s holding in United States v. Jackson, 384 F.2d 825 (3d Cir. 1967), cert. denied, 392 U.S. 932, 933, 88 S.Ct. 2292, 20 L.Ed.2d 1390 (1968). . 18 U.S.C. § 3109, reads as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. The same standard applies to" }, { "docid": "16370547", "title": "", "text": "of the warrant, “he shall then” give the required information. (Emphasis added.) Whether “then” means “at that time” or “subsequently” or nothing at all, it does not in terms make the information a condition precedent to a valid arrest. . See Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 20 L.Ed.2d 828 n. 8 (1968); Ker v. California, 374 U.S. 23, 39-40, 83 S.Ct. 1623, 10 L.Ed. 726 (1963) (opinion of Clark, J.); id. at 47, 83 S.Ct. at 1636 (opinion of Brennan, J.); Gilbert v. United States, 366 F.2d 923, 931-932 (9 Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed 1370 (1967). . Cf. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Terry v. Ohio, 392 U.S. 1, 27-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); id. at 33, 88 S. Ct. at 1886 (opinion of Harlan, J.). BURGER, Circuit Judge (concurring in part and dissenting in part): I accept the Government’s concession in cases numbered 21,427 and 21,437 solely on the authority of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, (1968). In 21,427 I concur in that part of the opinion holding that Appellant is without standing to object to any claimed Fifth Amendment violations arising out of Frazier’s confession. I dissent from that portion of the majority opinion which permits Appellant to re-open the identification issue on remand. As the majority concedes, witnesses “Reznick and Simpson had a good opportunity to observe their assailants at the time of the offense. They gave a reasonably accurate description of both robbers shortly thereafter.” Since the witnesses had a prior adequate opportunity to observe, there was plainly an independent source for the in-court identifications. It is on this same basis that I concur in the majority holding in number 21,437 that the witness who made the in-court identification in the District Court is to be permitted to testify at the new trial without the necessity for a pre-trial hearing. In number 21,439 the only issue before the court is whether an alleged" }, { "docid": "9911083", "title": "", "text": "provides as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. Although expressed in terms of entry to execute a search warrant, § 3109 also applies to forcible entries to effect an arrest, whether upon probable cause or with a warrant. Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); United States v. Blake, 484 F.2d 50, 57 n. 6 (8th Cir. 1973), cert, denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974). . Kulcsar and Darlys Brown testified that they did not hear the officers knock and announce their authority. The district judge did not find this testimony credible. His findings on the motion to suppress are subject to the clearly erroneous standard of review, and we find his conclusions supported by the record. United States v. Boyer, 574 F.2d 951, 954 (8th Cir. 1978); United States v. Woods, 560 F.2d 660, 663 (5th Cir. 1977), cert, denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976). . Within hours, Kulcsar had completed two narcotics transactions. His agent, Ploof, had failed to return with payment after the second sale. When Kulcsar saw two agents approaching his house, he ducked out of sight. Three federal agents and a uniformed policeman knocked loudly and persistently on his door. These facts justified the officers’ belief. . They also had statutory authority to effect a warrantless arrest. 21 U.S.C. § 878(3). . See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978). “Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant. Warden v. Hayden, 387" }, { "docid": "23162616", "title": "", "text": "of the imminent danger of arrest. Furthermore, the conversation between Mapp and Walters in the hallway of 1925 Monterrey Avenue indicated that the arrival of a man (“the gangster”) was expected very shortly. There was a danger, if the agents had been required to secure a warrant, that narcotics would be delivered to the awaited visitor, and the evidence lost. It was also possible that Mapp planned to return to Mrs. Walters’s apartment within a few hours; his failure to return, as a result of the arrest, might have alerted Mrs. Walters to possible danger, resulting in the destruction of evidence. We conclude, therefore, that the exigent circumstances of this case justified the warrantless nighttime entry and arrest. United States v. Titus, supra, 445 F.2d at 578-579. United States v. Davis, 461 F.2d 1026, 1029-1032 (3 Cir. 1972); Dorman v. United States, supra. D. Failure to Announce Purpose Mapp argues that even assuming arguendo that there was probable cause and the arrest without a warrant was valid, the forcible entry, accompanied by a breaking down of the door to Mrs. Walters’s apartment, was not preceded by the proper announcement. 18 U.S.C. § 3109 provides that an “officer may break open any outer or inner door or window of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.” At least since Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the same standard has been applied to arrests made without warrant, on the basis of probable cause, see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). As we indicated in our en bane decision in United States v. Manning, 448 F.2d 992, 997 (2 Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 125, 30 L.Ed.2d 69 (1971), the common law rule codified in § 3109" }, { "docid": "23162617", "title": "", "text": "of the door to Mrs. Walters’s apartment, was not preceded by the proper announcement. 18 U.S.C. § 3109 provides that an “officer may break open any outer or inner door or window of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.” At least since Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the same standard has been applied to arrests made without warrant, on the basis of probable cause, see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). As we indicated in our en bane decision in United States v. Manning, 448 F.2d 992, 997 (2 Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 125, 30 L.Ed.2d 69 (1971), the common law rule codified in § 3109 has, over the years, been modified by judicial decision. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), a case involving unannounced nighttime entry by law enforcement officials, even Mr. Justice Brennan, the dissenter from the Court’s conclusion that the entry in question did not violate the Fourth Amendment, conceded that an unannounced nighttime entry was constitutionally permissible in certain instances: Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door) are then engaged in activity which justifies the officers in the belief that an escape or the destruction of" }, { "docid": "12153379", "title": "", "text": "Johnson, 475 F.2d 977, 982 (D.C.Cir. 1973) (dissenting opinion), n. 8. . Having found that the seizure was properly incident to the arrest we do not considei whether the warrant was invalid because the articles to be seized had not arrived at the place to be searched at the time the warrant was issued. . “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” . Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). . See United States v. Harrison, 487 F.2d 389 (9th Cir. decided July 19, 1973). . Error is not asserted on the ground that the fact questions preliminary to the admission of evidence should be decided by the court (Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) ; United States v. Knight, 416 F.2d 1181 (9th Cir. 1969)) and that the practice of submitting these preliminary questions to the jury is not approved in this circuit. . “I do find, as a matter of law, that there has been sufficient evidence presented to justify you — I’m not saying you should — to justify the jury in finding a conspiracy. I’m not saying that the evidence establishes a conspiracy beyond a reasonable doubt. That’s for you to decide. I’m simply saying that there’s enough to justify your finding that a conspiracy existed.” Tr. p. 315. . “ . . . It is for the jury and not the Court to decide whether or not there was any conspiracy. All that the Court now indicates is that if the jury does decide that there was a conspiracy, for the purposes charged in the indictment, either or both conspiracies, if the jury makes that decision, which the jury can, but doesn’t have to, then any statement or act of any defendant made" }, { "docid": "12104573", "title": "", "text": "component, we affirm the denial of the motion to suppress because the evidence presented at the suppression hearing demonstrated that both parts of the standard were satisfied. A. The Standard Section 3109 of Title 18 provides as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. 18 U.S.C. § 3109 (1982). Property seized in violation of § 3109 may be excluded from evidence. United States v. Burke, 517 F.2d 377, 386 n. 13 (2d Cir.1975). Notwithstanding a failure to comply with § 3109, the evidence seized need not be suppressed if the noncompliance was excused by exigent circumstances. See Sabbath v. United States, 391 U.S. 585, 591 & n. 8, 88 S.Ct. 1755, 1759 & n. 8, 20 L.Ed.2d 828 (1968) (“there is little reason” to doubt that exceptions to constitutional strictures on entering a dwelling also apply to the requirements of § 3109, citing Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (opinion of Brennan, /., dissenting)). Thus, this Court has recognized that noncompliance with § 3109’s knock-and-announce requirement may be excused “(1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.” United States v. Manning, 448 F.2d 992, 1001 (2d Cir.) (en banc) (quoting Ker v. California, 374 U.S. at 47, 83 S.Ct. at 1636 (opinion of Brennan, J., dissenting)), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed. 2d" }, { "docid": "23199124", "title": "", "text": "' B. The Section 3109 Issue. The defendants also argue that the entry into the garage was improper because of the agents’ failure to comply with 18 U.S.C. § 3109. That statute provides: “The officer may break open any outer door or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” It is clear that these requirements apply to warrantless arrest entries and to the type of “breaking” that took place in this case, i.e., the opening of an unlocked door. Sabbath v. United States, 1968, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828. The roots of section 3109, commonly referred to as the “rule of announcement,” extend well back in the history of Anglo-American jurisprudence. See Sabbath v. United States, supra, at p. 589, 88 S.Ct. 1755, Sonnenreich and Ebner, No-Knock and Nonsense, An Alleged Constitutional Problem, 44 St. John’s L.Rev. 626, 627-39 (1970); Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499, 500-16 (1964). It is now clear that, to some extent, its requirements have been incorporated into the Fourth Amendment. See Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Three interests are said to be served by the rule of announcement: (1) it reduces the potential for violence to both the police officers and the occupants of the house- into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that “a man’s house is his castle.” See Miller v. Unit ed States, 1958, 357 U.S. 301, 307, 313 n. 12, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332; Note, Announcement in Police Entries, 80 Yale L.J. 139, 140-41 (1970). Nonetheless, it has never been suggested that the requirement is an inflexible one; both" }, { "docid": "15152600", "title": "", "text": "Miranda warnings, and that after receiving the warnings he freely and voluntarily responded to questions and admitted participation in the crime. The Fifth Amendment does not bar the use of physical evidence or admissions volunteered by a defendant without interrogation or “compelling influence.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); accord, United States v. Webb, 533 F.2d 391, at 394 (8th Cir. 1976); United States v. Martin, 511 F.2d 148, 150-51 (8th Cir. 1975). The evidence obtained by government agents in the defendant’s home on May 8, 1975, was properly admitted. The judgment of conviction is affirmed. . The Honorable Edward J. Devitt, Chief Judge, United States District Court for the District of Minnesota. . The statute provides: Breaking doors or windows for entry or exit The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. In Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the Su preme Court held that though § 3109 deals only with entry to execute a search warrant, the validity of a federal officer’s entry to effect an arrest without a warrant “must be tested by criteria identical with those embodied in” the statute. Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968); Wong Sun v. United States, 371 U.S. 471, 482-84, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). . The defendant’s contention that the agents, upon entering his home, lacked probable cause to arrest him without a warrant or to obtain an arrest warrant before entering, is not well taken. He cannot seriously contend that Agent Boulger, having interviewed Michael Longville the same evening, lacked an articulable and objective basis for reasonable suspicion that criminal conduct was afoot in the defendant’s home, leading him to" }, { "docid": "14369068", "title": "", "text": "Hijos’ apartment, those circumstances were insufficient to justify the Task Force agents’ method of entry. Because an unreasonable method of entry requires suppression fully as much as an unjustified warrantless entry, the court does not have to decide, and rely upon, the issue whether exigent circumstances can ever be found solely on generalized experience and assumptions about the behavior of suspected drug traffickers. B. The Warrantless Entry Violated the “Knock-and-Announce” Statute Defendants contend that even if the war-rantless entry was justified by probable cause and exigent circumstances, it was invalidated by the agents’ failure to comply with the federal “knock-and-announce” statute, 18 U.S.C. § 3109. This contention is correct. Thus, the court holds that on the undisputed evidence of the case, the agents’ manner of entry was unlawful. Section 3109 provides: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. Although the statute speaks only to situations involving a warrant, the Supreme Court has held that it applies to warrant-less searches as well. Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958). In addition, the Court has held that any unannounced intrusion into a dwelling, including passage through a closed, but unlocked, door, violates the statute. Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968). Noncompliance with the rule is excused where exigent circumstances, such as a reasonable belief in the risk of flight or destruction of evidence, militate against its application. See Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 1633-34, 10 L.Ed.2d 726 (1963) (plurality opinion) (construing state law counterpart to § 3109). As with the cases analyzing exigent circumstances to enter discussed above, courts have generally excused compliance with § 3109 when specific evidence existed that a suspect was aware of the" }, { "docid": "23157402", "title": "", "text": "information did not come out at the suppression hearing. Agent Ashton so testified at trial. However, because the incident was known to the agents at the time tiiey entered the apartment to make the arrest, we can consider it to establish probable cause. . The judge at the suppression hearing told counsel that if anything revealed by the informer (luring the in camera hearing was prejudicial, lie would reveal it to him immediately. This assurance conformed to this court’s holding in United States v. Jackson, 384 F.2d 825 (3d Cir. 1967), cert. denied, 392 U.S. 932, 933, 88 S.Ct. 2292, 20 L.Ed.2d 1390 (1968). . 18 U.S.C. § 3109, reads as follows: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. The same standard applies to the execution of arrest warrants. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). . The law governing execution of warrant-less arrests by breaking and entering is governed by the same standard. Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). . Congress has concluded that announced entries pose such a great problem in narcotics cases because of the potential destruction of evidence that it passed a “no-knock” provision obviating the announcement requirement as part of the Drug Control Act of 1970. Section 509(b). See note 5, supra. AAre express no view on the constitutionality of that statute. . A third person, Gloria Anderson, was in the apartment, in the living room, at the time of the arrests. She too was arrested, but a search of the area under her control revealed no evidence used in this case. Kelley asked that she be let go because she was not involved in the transaction, and she was not indicted. As will be noted later, Inez" } ]

[ { "docid": "22555994", "title": "", "text": "in Colgate v. Harvey (296 U. S. 404, 445) and Note 1 of Mr. Justice Stone’s opinion in the Hague case (307 U. S. 496, 520). Mr. Justice Roberts’ opinion, at p. 512: “Although it has been held that the Fourteenth Amendment created no rights in citizens of the United States, but merely secured existing rights against state abridgement, it is clear that the right peaceably to assemble and to discuss these topics, and to communicate respecting them, whether orally or in writing, is a privilege inherent in citizenship of the United States which the Amendment protects.” Mr. Justice Stone’s opinion, at p. 519-21: “Hence there is no occasion ... to revive the contention, rejected- by this Court in the Slaughter-House' Cases, that the privileges and immunities of United States citizenship, protected by that clause, extend beyond those which arise or grow out of the relationship of United States citizens to the national government. “That such is the limited application of the privileges and immunities clause seems now to be conceded by my brethren.” Wall. 36, at 71-72: “We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. ... “. . . And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase" } ]

[ { "docid": "22620910", "title": "", "text": "be subjected, any citizen of the United States or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... for redress.” Section 47 (3), so far as now relevant, gives an action for damages to any person “injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States,” by reason of a conspiracy of two or more persons entered into “for the purpose of depriving . . . any person ... of the equal protection of the laws, or of equal privileges and immunities under the laws.” It is the contention of petitioner that the right conferred on him by state law to become a candidate for and to be elected to the office of representative upon receipt of the requisite number of votes in the primary and general elections, is a right secured to him by the Fourteenth Amendment, and that the action of the State Primary Canvassing Board deprived him of that right and of the equal protection of the laws for which deprivation the Civil Rights Act authorizes his suit for damages. Three distinct provisions of the Fourteenth Amendment guarantee rights of persons and property.. It declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process, of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. Slaughter-House Cases, 16 Wall. 36, 74, 79; Maxwell v. Bugbee, 250" }, { "docid": "23456587", "title": "", "text": "citizens of the United States and of the State wherein they reside,” provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The “privileges or immunities” clause of the Fourteenth Amendment is not a basis for the exercise of federal power in the protection of individual rights against state action since it protects only rights of national citizenship. It was so expressly held more than a century ago in the historic Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873), where it was stressed that the Fourteenth Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and thus “speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.” 83 U.S. at 74. (emphasis supplied). Later Supreme Court cases have consistently followed Slaughter-House, in construing the Amendment’s privilege and immunity clause to protect only interests growing out of the relationship between citizens of the United States and the national government. In doing so, the leading case of Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), said with respect to Slaughter-House: “The distinction between national and state citizenship and their respective privileges there drawn has come to be firmly established.” 211 U.S. at 96, 29 S.Ct. at 18. In Snowden v. Hughes, 321 U.S. 1 (1944), where § 1983 was invoked, the Court citing, inter alia, Slaughter-House, said at pages 6-7, 64 S.Ct. 397, at page 400, 88 L.Ed. 497: “The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include" }, { "docid": "22620912", "title": "", "text": "U. S. 525, 538; Prudential Insurance Co. v. Cheek, 259 U. S. 530, 539; Madden v. Kentucky, 309 U. S. 83, 90-93. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-78; Pope v. Williams, 193 U. S. 621, 632; Breedlove v. Suttles, 302 U. S. 277, 283, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause. More than forty years ago this Court determined that an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause. Taylor & Marshall v. Beckham, 178 U. S. 548. Only once since has this Court had occasion to consider the question and it then reaffirmed that conclusion, Cave v. Newell, 246 U. S. 650, as we reaffirm it now. Nor can we conclude that the action of the State Primary Canvassing Board, even though it be regarded as state action within the prohibitions of the Fourteenth Amendment, was a denial of the equal protection of the laws. The denial alleged is of the right of petitioner to be a candidate for and to be elected to public office upon receiving a sufficient number of votes. The right is one secured to him by state statute and the deprivation of right is alleged to result solely from the Board’s failure to obey state law. There is no contention that the statutes of the state are in any respect inconsistent with the guarantees of the Fourteenth Amendment. There is no allegation of any facts tending to show that in refusing to certify petitioner as a nominee, the Board was making any intentional or purposeful discrimination between persons or classes. On the argument before us petitioner disclaimed any contention that class or racial discrimination is involved. The insistence is rather that the Board, merely by failing to certify petitioner as a duly elected nominee, has denied" }, { "docid": "22779700", "title": "", "text": "is a right or privilege of state citizenship.” (Emphasis added.) Arguably Minor v. Happersett, 21 Wall. 162, is to the contrary, but to the extent its dicta indicated otherwise, it.was limited in Ex parte Yarbrough. Breedlove v. Suttles, 302 U. S. 277, overruled by Harper v. Virginia Board of Elections, 383 U. S. 663, involved a poll tax applied in both federal and state elections; it erroneously cited Yarbrough for the proposition voting is not a privilege and immunity of national citizenship. Pope v. Williams, 193 U. S. 621, involved durational residency requirements, but expressly reserved the question of their application to presidential and vice-presidential elections. Our holdings concerning privileges and immunities of national citizenship were analyzed less than five years ago by my Brother HarlaN. After referring to Ex parte Yarbrough, and United States v. Classic, he stated that those cases “are essentially concerned with the vindication of important relationships with the Federal Government — voting in federal elections, involvement in federal law enforcement, communicating with the Federal Government.” United States v. Guest, 383 U. S. 745, 772 (separate opinion) (emphasis added). Contrary to the suggestion of my Brother HarlaN, post, at 213, we need not rely on. the power of Congress to declare -the meaning of § 1 of the Fourteenth Amendment. This Court had determined that voting for national officers is a privilege and immunity of national citizenship. No congressional declaration was necessary. Congressional power under § 5 of the Fourteenth Amendment is, as stated, buttressed by congressional power under the Necessary and Proper Clause. Thus even if the durational residency requirements do not violate the Privileges and Immunities Clause, Congress can determine that it is necessary and proper to abolish them in national elections to effectuate and further the purpose of § 1 as it has been declared by this Court. Mr. Justice Hablan, concurring in part and dissenting in part. From the standpoint of this Court’s decisions during an era of judicial constitutional revision in the field of the suffrage, ushered in eight years ago by Baker v. Carr, 369 U. S. 186 (1962), I" }, { "docid": "1804878", "title": "", "text": "and his state established by state law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L.Ed. 1044; Madden v. Commonwealth of Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-178, 22 L.Ed. 627; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 575, 48 L.Ed. 817; Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 208, 82 L.Ed. 252, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause. * * * “* * * Thg (jenjai alleged is of the right of petitioner to be a candidate for and to be elected to public office upon receiving a sufficient number of votes. The right is one secured to him by state statute and the deprivation of the right is alleged to result solely from the Board’s failure to obey state law. * * * There is no allegation of any facts tending to show that in refusing to certify petitioner as a nominee, the Board was making any intentional or purposeful discrimination between persons or classes. * * * “* * * The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. * * * But a discriminatory purpose is not presumed, * * * there must be a showing of ‘clear and intentional discrimination,’ * * * But a mere showing that negroes were not included in a particular jury is not enough; there must be a showing" }, { "docid": "367823", "title": "", "text": "of the Fourteenth Amendment. Citizens of the United States-residing in Puerto Rico and the Virgin-Islands do not have the right to vote, and the Twenty-third Amendment was-necessary to give residents of the District of Columbia the right to vote for electors for President and Vice-President. It is true, however, as we have noted,, that the Equal Protection Clause of the Fourteenth Amendment prohibits a state from incorporating provisions in its election laws which unreasonably discriminate against any class of persons within its borders. The real question in this case is whether the provisions of the Maryland Constitution and statutes which require residence in the State for one year and in the county for six months before an otherwise qualified voter may vote in a presidential election are so unreasonable as to amount to a prohibited discrimination. Insofar as those provisions apply to elections other than those to choose electors for President and Vice-President, they have been held reasonable and permissible by the Supreme Court of the United States. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). In that case Mr. Justice Peck-ham, speaking for the Court, said: “The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. It may not be refused on account of race, color, or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.” 193 U.S. at 632, 24 S.Ct. at 575. The Court noted, however: “In this case no question arises as to the right to vote for electors of President and Vice-President, and no decision is made thereon. The question whether" }, { "docid": "20555551", "title": "", "text": "and so long as the classifications they created were “rationally related” to promoting a legitimate state interest. The conditions of suffrage that have been held constitutional by the Supreme Court: age; literacy, Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959); no previous criminal record, Davis v. Beason, 133 U.S. 333, 345-348, 10 S.Ct. 299, 33 L.Ed. 637 (1890); citizenship of the United States; and one-year residency, Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). The rationale for applying the “rational relation” test to these uniformly-applied and reasonable conditions of suffrage, was the Court’s consistent belief that the power to determine who is qualified to vote in state and local elections was one that the states did not surrender to the federal government. See Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904); Davis v. Beason, 133 U.S. 333, 345-348, 10 S.Ct. 299, 33 L.Ed. 637 (1890); Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627 (1874). “The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as it deems proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution.” Pope v. Williams, supra, 193 U.S. at 632, 24 S.Ct. at 575. Citations omitted. Since no one has the federal constitutional right to vote in State and local elections, the state may create reasonable nondiscriminatory classifications of those to whom it will grant the franchise. Since reasonable conditions of suffrage do not impinge upon a federal constitutional right to vote in state and local elections, the “rational" }, { "docid": "11965806", "title": "", "text": "not capable of suing in the courts of the United States, under the judiciary act, is equally applicable to a citizen of a territory.” Cf. Pope v. Williams, 98 Md. 59, 56 A. 543, 66 L.R.A. 398, 103 Am.St.Rep. 379, affirmed, 193 U. S. 621, 24 S.Ct. 573, 48 L.Ed. 817. R.S. §§ 905, 906, 28 U.S.C.A. §§ 687, 688. See Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346; Atchison, Topeka and Santa Fe Ry. v. Sowers, 213 U.S. 55, 64, 65, 29 S.Ct. 397, 53 L.Ed. 695. Blake v. McClung, 172 U.S. 239, 256, 19 S.Ct. 165, 172, 43 L.Ed. 432. Blake v. McClung, supra note 16. See also, La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362; Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357. Perry v. Spokane, Portland & Seattle Ry. Co., 258 U.S. 314, 318, 42 S.Ct. 358, 66 L.Ed. 635, 20 A.L.R. 1326; Haavik v. Alaska Packers’ Ass’n., 263 U.S 510, 44 S.Ct. 177, 68 L.Ed. 414. Slaughter-House Cases, 16 Wall. 36, 77, 21 L.Ed. 394; United States v. Harris, 106 U.S. 629, 643, 644, 1 S.Ct. 601, 27 L.Ed. 290. In re Johnson’s Estate, 139 Cal. 532, 536, 73 P. 424, 426, 96 Am.St.Rep. 161:. “It nowhere intimates that an immunity conferred upon citizens of a state, because not in terms conferred upon citizens of sister states, shall therefore be void. * * * It leaves to the state perfect freedom to grant such privileges to, its citizens as it may see fit, but secures to the citizens of all the other states, by virtue of the constitutional enactment itself, the same rights, privileges, and immunities.” Canadian Northern Ry. v. Eggen, 252 U.S. 553, 562, 40 S.Ct. 402, 64 L.Ed. 713. See also, Blake v. McClung, 172 U.S. 239, 256, 19 S.Ct. 165, 43 L.Ed. 432. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893, 108 A.L.R. 1352: “The cardinal principle of statutory construction is to save and not to destroy. We" }, { "docid": "22620911", "title": "", "text": "the action of the State Primary Canvassing Board deprived him of that right and of the equal protection of the laws for which deprivation the Civil Rights Act authorizes his suit for damages. Three distinct provisions of the Fourteenth Amendment guarantee rights of persons and property.. It declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process, of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. Slaughter-House Cases, 16 Wall. 36, 74, 79; Maxwell v. Bugbee, 250 U. S. 525, 538; Prudential Insurance Co. v. Cheek, 259 U. S. 530, 539; Madden v. Kentucky, 309 U. S. 83, 90-93. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-78; Pope v. Williams, 193 U. S. 621, 632; Breedlove v. Suttles, 302 U. S. 277, 283, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause. More than forty years ago this Court determined that an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause. Taylor & Marshall v. Beckham, 178 U. S. 548. Only once since has this Court had occasion to consider the question and it then reaffirmed that conclusion, Cave v. Newell, 246 U. S. 650, as we reaffirm it now. Nor can we conclude that the action of the" }, { "docid": "4383458", "title": "", "text": "63 S.Ct. 877, 87 L.Ed. 1324. We agree with the appellee’s contention and the District Court’s ruling that the appellant has no cause of action under that portion, of the Fourteenth Amendment whjch prohibits a state from - enforcing any law which abridges the privileges or immunities of citizens of the United States. “The protection extended to citizens of the United States- by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by State law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L. Ed. 1044, 27 A.L.R. 27; Madden v. Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590, 125 A.L.R. 1383.” Snowden v. Hughes, 321 U.S. 1, Page 6, 64 S.Ct. 397, 400, 88 L.Ed. 497. The right to a license to sell intoxicating liquor is not a natural or fundamental right, nor a privilege incident to national citizenship. The regulation of the liquor traffic in any state is exclusively under the police power of that particular state. Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 34 L. Ed. 620; Giozza v. Tiernan, 148 U.S. 657, 661, 662, 13 S.Ct. 721, 37 L.Ed 599; Cronin v. Adams, 192 U.S. 108, 114, 24 S.Ct. 219, 48 L.Ed. 365; Sherlock v. Stuart, 96 Mich. 193, 196, 55 N.W. 845, 21 L.R.A. 580; Compare: Emmons v. Smitt, et al., 6 Cir., 149 F.2d 869, 872. Under its police power the State of Michigan has enacted what is .popularly called the Michigan Liquor Control Statute, by which the Michigan Liquor Control Commission is authorized to issue licenses to sell intoxicating liquor. Act No. 8 of Public Acts of 1933, as amended; Terre Haute" }, { "docid": "367824", "title": "", "text": "S.Ct. 573, 48 L.Ed. 817 (1904). In that case Mr. Justice Peck-ham, speaking for the Court, said: “The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. It may not be refused on account of race, color, or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.” 193 U.S. at 632, 24 S.Ct. at 575. The Court noted, however: “In this case no question arises as to the right to vote for electors of President and Vice-President, and no decision is made thereon. The question whether the conditions prescribed by the state might be regarded by others as reasonable or unreasonable is not a Federal one. We do not wish to be understood, however, as intimating that the condition in this statute is unreasonable or in any way improper.” 193 U.S. at 633, 24 S.Ct. at 576. The Court of Appeals of Maryland has stated the purposes of the provisions in question in the instant case are (1) “identifying the voter, and as a protection against fraud;” and (2) to insure that the voter will “become in fact a member of the community, and as such have a common interest in all matters pertaining to its government.” Shaeffer v. Gilbert, 73 Md. 66, 20 A. 434, 435 (1890); see also Howard v. Skinner, 87 Md. 556, 40 A. 379, 380-381, 40 L.R.A. 753 (1898); Hill v. Board of Registry, 171 Md. 653, 187 A. 869, 871 (1936); Shenton v. Abbott, 178 Md. 526, 15 A.2d 906, 908 (1940). The judges of this Court, personally, are of the opinion that those objectives" }, { "docid": "20555550", "title": "", "text": "impinge upon individuals’ federally-secured constitutional rights. Where a state classification impinges upon citizens’ constitutional rights, the Supreme Court has consistently required that it come under “more exacting scrutiny” than the “rational relation” test provides. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), discussed infra; McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944). This “more exacting” equal protection formula, applied to state legislation creating classifications which impinge upon citizens’ constitutional rights, has become known as the “compelling state interest” test. This test requires, first, that the classification be “necessary” to promote an articulated state interest; second, that the articulated state interest promoted be a “compelling state interest.” Until very recently, it was generally accepted that the states could determine those within its jurisdiction who were qualified to vote in state and local elections, so long as the “conditions of suffrage” they imposed were nondiscriminatory on their face and as applied, and so long as the classifications they created were “rationally related” to promoting a legitimate state interest. The conditions of suffrage that have been held constitutional by the Supreme Court: age; literacy, Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959); no previous criminal record, Davis v. Beason, 133 U.S. 333, 345-348, 10 S.Ct. 299, 33 L.Ed. 637 (1890); citizenship of the United States; and one-year residency, Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). The rationale for applying the “rational relation” test to these uniformly-applied and reasonable conditions of suffrage, was the Court’s consistent belief that the power to determine who is qualified to vote in state and local elections was one that the states did not surrender to the federal government. See Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904); Davis v. Beason, 133 U.S. 333, 345-348, 10 S.Ct. 299, 33 L.Ed. 637 (1890); Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627 (1874)." }, { "docid": "3691171", "title": "", "text": "Twelfth Amendment, prescribing the procedure for electing the President and Vice President. Amendments since the War Between the States have considerably extended the scope of federal power to regulate the elective franchise. The Fifteenth Amendment has no application to this case, since the complaint shows that the plaintiff is a white man. Nor is the Nineteenth, or Woman Suffrage, Amendment involved. The Seventeenth Amendment provides for the direct election of Senators by electors in each State having the qualifications requisite for electors of the most numerous branch of the State legislatures. That the complaint does state a case within the jurisdiction of the district court to redress the deprivation of rights, privileges or immunities secured by the Constitution of the United States does not require an elaborate discussion of the rights of suffrage and of the extent to which those rights are secured by the Constitution of the United States. Brief quotations from two leading cases will suffice to demonstrate that the complaint states a case within the jurisdiction of the district court. * * While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, see, Minor v. Happersett, 21 Wall. 162, 170, 22 L.Ed. 627; United States v. Reese, 92 U.S. 214, 217, 218, 23 L.Ed. 563; McPherson v. Blacker, 146 U.S. 1, 38-39, 13 S.Ct. 3, 11, 12, 36 L.Ed. 869; Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 207, 82 L.Ed. 252, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing Powers. See Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ex parte Yarbrough, supra, 110 U.S." }, { "docid": "22779699", "title": "", "text": "399 U. S. 204. Accordingly they have held durational residency requirements for (congressional elections (and by implication presidential elections) violate the Equal Protection Clause. See Burg v. Canniffe, 315 F. Supp. 380 (Mass. 1970); Blumstein v. Ellington, — F. Supp. — (MD Tenn. 1970); Hadnott v. Amos, 320 F. Supp. 107 (MD Ala. 1970); Bufford v. Holton, 319 F. Supp. 843 (ED Va. 1970). In none of these cases was an Act of Congress involved. Article IV, §2,'of the Constitution provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Fourteenth Amendment provides in § 1 that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The cases relied on by my Brother HARLAN, post, at 214; are not to the contrary. Snowden v. Hughes, 321 U. S. 1, 7, states: “The right to become a candidate for state office, like the right to vote for the election of state officers ... is a right or privilege of state citizenship.” (Emphasis added.) Arguably Minor v. Happersett, 21 Wall. 162, is to the contrary, but to the extent its dicta indicated otherwise, it.was limited in Ex parte Yarbrough. Breedlove v. Suttles, 302 U. S. 277, overruled by Harper v. Virginia Board of Elections, 383 U. S. 663, involved a poll tax applied in both federal and state elections; it erroneously cited Yarbrough for the proposition voting is not a privilege and immunity of national citizenship. Pope v. Williams, 193 U. S. 621, involved durational residency requirements, but expressly reserved the question of their application to presidential and vice-presidential elections. Our holdings concerning privileges and immunities of national citizenship were analyzed less than five years ago by my Brother HarlaN. After referring to Ex parte Yarbrough, and United States v. Classic, he stated that those cases “are essentially concerned with the vindication of important relationships with the Federal Government — voting in federal elections, involvement in federal law enforcement, communicating with the Federal Government.” United States v. Guest, 383" }, { "docid": "23013275", "title": "", "text": "qualified persons also belongs exclusively to the states. In the case of Pope v. Williams, 1904, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, the appellant, Pope, refused to comply with the Maryland registration procedure and brought action declaring that the refusal of the registration board to register him was in violation of Section 1 of the Fourteenth Amendment. The Court (193 U.S. 621, 632, 633, 24 S.Ct. 573, 575) set aside these contentions and set forth the following as the appropriate requirements of registration: “The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162, [22 L.ed 627]. It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized, and, as stated by Mr. Chief Justice Waite in Minor v. Happersett, supra, [21 Wall. 162, 22 L.ed 627] such persons were allowed to vote in several of the States upon having declared their intentions to become citizens of the United States. Some States permit women to vote; others refuse them that privilege. A State, so far as the Federal Constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote, as the Federal Constitution does not confer the right of suffrage upon any one, and the conditions under which that right is to be exercised are matters for the states alone to prescribe, * * * ***** the elector must be one entitled to vote under the state statute. (Id.," }, { "docid": "23013274", "title": "", "text": "[,23 L.Ed. 588] (23:588); United States v. Reese, 92 U.S. 214 [,23 L.Ed. 563] (23:563) * * *. “The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State. There is no color for the contention that under the amendments every male inhabitant of the State being a citizen of the United States has from the time of his majority a right to vote for presidential electors.” [Emphasis added.] In the case of Karem v. United States, 1903, 121 F. 250, 255 (no appeal noted) the Circuit Court of Appeals for the Sixth Circuit held that: “The affirmative right to vote * * * is still dependent upon and secured by the Constitution and laws of the state, the power of the state to prescribe the qualification being limited in only one particular.” [Emphasis added.] The Supreme Court, having concluded that the right to vote emanates from the states and not the federal government, has held that the qualifications and registration of qualified persons also belongs exclusively to the states. In the case of Pope v. Williams, 1904, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, the appellant, Pope, refused to comply with the Maryland registration procedure and brought action declaring that the refusal of the registration board to register him was in violation of Section 1 of the Fourteenth Amendment. The Court (193 U.S. 621, 632, 633, 24 S.Ct. 573, 575) set aside these contentions and set forth the following as the appropriate requirements of registration: “The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162, [22 L.ed 627]. It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised" }, { "docid": "1804877", "title": "", "text": "says implemented that constitutional provision, contains like words, “without distinction of race, color, or previous condition of servitude * * The basic Supreme Court decision applying these principles is Snowden v. Hughes, 1943, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. No more accurate standard for decision in this case could be enunciated than to quote the language of that case. Snowden had been certified as one of the chosen candidates of the Republican Party in a state election by the County Canvassing Board. But the State Primary Canvassing Board refused to certify him as a candidate, and he brought suit under the same statutes as are here involved. What the Supreme Court said there controls this case: “The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L.Ed. 1044; Madden v. Commonwealth of Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-178, 22 L.Ed. 627; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 575, 48 L.Ed. 817; Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 208, 82 L.Ed. 252, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause. * * * “* * * Thg (jenjai alleged is of the right of petitioner to be a candidate for and to be elected to public office" }, { "docid": "4383457", "title": "", "text": "immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 1979 Revised Statutes of the United States gives enforcement to the Amendment by the following provisions: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” It is settled that the District Courts of the United States are given jurisdiction by Title 28 U.S.C.A. § 41(14), over suits brought under the provisions of this Act without the allegation or proof of' any jurisdictional amount. Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324. We agree with the appellee’s contention and the District Court’s ruling that the appellant has no cause of action under that portion, of the Fourteenth Amendment whjch prohibits a state from - enforcing any law which abridges the privileges or immunities of citizens of the United States. “The protection extended to citizens of the United States- by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by State law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L. Ed. 1044, 27 A.L.R. 27; Madden v. Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84" }, { "docid": "15485791", "title": "", "text": "to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the Fourteenth Amendment. The privilege of voting is derived from the State and not from the national government. The qualification of voters in an election for members of Congress is set out in Article 1, Section 2, Clause 1 of the Federal Constitution which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 82 L.Ed. 252, held that a poll tax prescribed by the Constitution and statutes of the State of Georgia did not offend the Federal Constitution. The court said (302 U.S. 277 at page 283, 58 S.Ct. at page 208, 82 L.Ed. 252): “To malee payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate. Minor v. Happersett, 21 Wall. 162, 170 et seq., 22 L.Ed. 627; Ex parte Yarbrough, 110 U. S. 651, 664, 665, 4 S.Ct. 152, 28 L.Ed. 274; McPherson v. Blacker, 146 U.S. 1, 37, 38, 13 S.Ct. 3, 36 L.Ed. 869; Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed. 1340, L.R.A.1916A, 1124. The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources. Hamilton v. Regents, 293 U.S. 245, 261, 55 S.Ct. 197, 203, 79 L.Ed. 343.” See also, Pirtle v. Brown, 6 Cir., 118 F. 2d 218, 139 A.L.R. 557, certiorari denied 314 U.S. 621, 62 S.Ct. 64, 86 L.Ed. 499; Annotation, 139 A.L.R. 561; Campbell v. Goode, 172 Va. 463, 2 S.E.2d 456; Stone v. Smith, 159 Mass. 413, 34" }, { "docid": "22779775", "title": "", "text": "vote in presidential elections is an appropriate means of preventing local discrimination against them in other respects, or of forestalling violations of the Fifteenth Amendment. The remaining grounds relied on are the Privileges and Immunities Clause of Art. IV, § 2, and the right to travel across state lines. While the right of qualified electors to cast their ballots and to have their votes counted was held to be a privilege of citizenship in Ex parte Yarbrough, 110 U. S. 651 (1884), and United States v. Classic, 313 U. S. 299 (1941), these decisions were careful to observe that it remained with the States to determine the class of qualified voters. It was federal law, acting on this state-defined class, which turned the right to vote into a privilege of national citizenship. As the Court has. consistently held, the Privileges and Immunities Clauses do not react on the mere status of citizenship to enfranchise any citizen whom an otherwise valid state law does not allow to vote. Minor v. Happersett, 21 Wall. 162, 170-175 (1875); Pope v. Williams, 193 U. S. 621, 632 (1904); Breedlove v. Suttles, 302. U. S. 277, 283 (1937); cf. Snowden v. Hughes, 321 U. S. 1, 6-7 (1944). Minors, felons, insane persons, and persons who have .not satisfied residency requirements are among those citizens who are not allowed to vote in most States. The Privileges and Immunities Clause of Art. IV of the Constitution is a .direct descendant of Art. IV of the Articles of Confederation: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this .Union, the free inhabitants of each of.'these States, paupers, vagabonds and fugitives from, justice excepted, shall be entitled to ' all privileges and immunities of free citizens in the several States . . . It is inconceivable that these words when used in the Articles could have been understood to abolish state durational residency requirements. There is not a vestige of evidence that any further extent was envisioned for them when they were carried over into the Constitution. And, as" } ]

[ { "docid": "4654395", "title": "", "text": "Cir.1986); Matter of Neavear, 674 F.2d 1201 (7th Cir.1982); In re McVey Trucking, Inc., 812 F.2d 311 (7th Cir.1987); In re Willington Convalescent Home, Inc., 850 F.2d 50 (2d Cir.1988). The majority view, which we choose to follow here, interprets § 106(c) as creating a cause of action against an un-consenting state, when a proceeding is brought under a provision of the Code which contains either the term “creditor,” “entity,” or “governmental unit.” Matter of McVey Trucking, supra, at 327; Gower v. Farmer’s Home Administration (In re Davis), 20 B.R. 519, 522 (Bankr.M.D.Ga. 1982); In re Prime, 44 B.R. 924 (Bankr.W.D.Mo.1984); In re Shelby County Healthcare Services of Al, Inc., 80 B.R. 555, 16 B.C.D. 1050 (Bankr.N.D.Ga.1987). Under the majority view, § 106(c) does not require that the state had filed a claim against the debtor, for a waiver of sovereign immunity to have occurred as subsections (a) and (b) prescribe. Matter of Neavear, supra, at 1204. Subsection (c) only requires that the provision which the debtor is seeking to have enforced, here § 542(b), contains one of the terms listed in § 106(c)(1). Section 542(b) provides: Except as provided in subsection (c) or (d) of this section, an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee, except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor. (Emphasis added.) Since § 542(b) is a provision containing the term “entity,” under the majority view the State’s sovereign immunity is waived in this instance. See In re Shelby County Healthcare Services, supra, 80 B.R. at 561, 16 B.C.D. at 1054, (the Bankruptcy Court held that the United States is an entity under § 542(a) and, therefore, had waived sovereign immunity under § 106(c)). The opposing minority view, including the most recent decision of the Second Circuit, In re Willington Convalescent Home, supra, interprets § 106(c) as waiving sovereign immunity “only to the extent necessary" } ]

[ { "docid": "22797822", "title": "", "text": "106. The District Court reversed without reaching the issue of congressional authority. 72 B. R. 1002 (Conn. 1987). The court held that § 106(c), when read with the other provisions of § 106, did not unequivocally abrogate Eleventh Amendment immunity. The United States Court of Appeals for the Second Circuit affirmed the District Court. 850 F. 2d 50 (1988). The Court of Appeals concluded that the plain language of § 106(c) abrogates sovereign immunity “only to the extent necessary for the bankruptcy court to determine a state’s rights in the debtor’s estate.” Id., at 55. The section does not, according to the Court of Appeals, abrogate a State’s Eleventh Amendment immunity from recovery of an avoided preferential transfer of money or from a turnover proceeding. The Court of Appeals specifically rejected petitioner’s reliance on the legislative history of § 106(c) because that expression of congressional intent was not contained in the language of the statute as required by Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). Because the actions brought by petitioner were not within the scope of § 106(c), the court held that they were barred by the Eleventh Amendment. The Second Circuit’s decision conflicts with the decisions of the Third Circuit in Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F. 2d 130, 133, cert. denied, 479 U. S. 936 (1986), and the Seventh Circuit in McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327, cert. denied, 484 U. S. 895 (1987). We granted certiorari to resolve the conflict, 488 U. S. 1003 (1989), and we now affirm. Section 106 provides as follows: “(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose. - “(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate. “(c) Except as provided in" }, { "docid": "18696630", "title": "", "text": "makes no mention of damages as a remedy against those who violate its terms. Thus, the central question to answer is whether Congress intended such a remedy to be implied. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.1985). See also Polaroid Corp. v. Disney, 862 F.2d 987, 995 (3d Cir.1988); Crown Cork & Seal v. Teamsters Pension Fund, 549 F.Supp. 307, 311 (E.D.Pa.1982), aff'd without op., 720 661 (3d Cir.1983). Under two other anti-discrimination provisions of the Code, 11 U.S.C. §§ 366(a) and 525(b), damages have been awarded against those who violate their terms, even though no such statutory remedy was expressed. See, e.g., In re Whittaker, 92 B.R. 110, 115-16 (E.D.Pa.1988), aff'd, 882 F.2d 791 (3d Cir.1989) (§ 366(a)); In re Hicks (§ 525(b)). However, sections 366(a) and 525(b) are directed primarily against non-governmental parties, while the principle purpose of section 525(a) is to address certain non-creditor governmental conduct. This distinction is significant. The clearest expression of congressional intent concerning the potential liability of governmental units for violations of bankruptcy code provisions is found in § 106 and its legislative history. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 317 (1977). Until recently, the interpretation given by the Third Circuit Court of Appeals to 11 U.S.C. § 106(c) suggested that Congress intended that the violation by a state governmental entity of a statutory provision which expressly referred to a governmental unit (such as in § 525(a)) could result in an award of provable damages. See Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F.2d 130 (3d Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 365 (1986). See also In re McVey Trucking, Inc., 812 F.2d 311 (7th Cir.), cert. denied, 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). Cf. Gardner v. Pennsylvania Dept. of Public Welfare, 685 F.2d 106, 109 (3d Cir.), cert. denied, 459 U.S. 1092, 103 S.Ct. 580, 74 L.Ed.2d 939 (1982) (holding the § 106(c) codified the longstanding power of Congress to adversely affect state held liens in bankruptcy). However, in Hoffman v. Connecticut Dept. of Income Maintenance, —" }, { "docid": "7065828", "title": "", "text": "at 1204. See also Matter of McVey Trucking, Inc., 812 F.2d 311, 327 (7th Cir.) (rejecting surplusage argument on basis of Neavear), cert. denied sub nom. Edgar v. McVey Trucking Co., — U.S. -, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). Moreover, § 106(a) and (b) are not tied to any particular Code sections, while subsection (c) applies only to those Code provisions containing “creditor,” \"entity,” or \"governmental unit.” We, therefore, do not rely upon the surplusage argument in our analysis. . Although § 106 speaks only of \"sovereign immunity,” that term clearly encompasses eleventh amendment immunity to the extent that the governmental unit in question is a state. As Judge Krechevsky correctly observed: The term \"sovereign immunity” embraces two distinct concepts — “whether [a State] may be sued,” Pennhurst State School & Hospital v. Halderman, [465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1985),] ... or common-law sovereign immunity, and “where [a State] may be sued,” id., or constitutional sovereign immunity in the [eleventh [a]mendment. 39 B.R. at 788-89. Thus, if a bankruptcy court can make determinations that bind a state under § 106(c), to that extent the state’s eleventh amendment immunity from suit in federal court has been waived by § 106(c)." }, { "docid": "22797839", "title": "", "text": "the debtor, thereby aiding the reorganization of the debtor’s af fairs or the orderly and equitable distribution of the estate. See United States v. Whiting Pools, Inc., 462 U. S. 198, 202-203 (1983). Exempting States from this provision, as well as from the preference provision, undermines these important policy goals of the Code. My conclusion that Congress intended § 106(c) to abrogate the States’ Eleventh Amendment immunity against money judgments requires me to decide whether Congress has the authority under the Bankruptcy Clause to do so. In Pennsylvania v. Union Gas Co., 491 U. S. 1, 19 (1989) (plurality opinion); id., at 57 (White, J., concurring in judgment), we held that Congress has the authority under the Commerce Clause to abrogate the States’ Eleventh Amendment immunity. I see no reason to treat Congress’ power under the Bankruptcy Clause any differently, for both constitutional provisions give Congress plenary power over national economic activity. See The Federalist No. 42, p. 271 (C. Rossiter ed. 1961) (J. Madison) (describing the Bankruptcy Clause and the Commerce Clause as “intimately connected”); cf., ante, at 105 (Scalia, J., concurring in judgment). For the reasons stated, I respectfully dissent. Not surprisingly, most courts considering § 106(c) have concluded that it clearly allows a trustee to recover preferences from a State and to require a State to turn over money belonging to the debtor. See, e. g., WJM, Inc. v. Massachusetts Dept. of Public Welfare, 840 F. 2d 996, 1001 (CA1 1988); McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327 (CA7), cert. denied, 484 U. S. 895 (1987); Neavear v. Schweiker, 674 F. 2d 1201, 1202-1204 (CA7 1982); Rhode Island Ambulance Services, Inc. v. Begin, 92 B. R. 4, 6-7 (Bkrtcy. Ct., RI 1988); Tew v. Arizona State Retirement System, 78 B. R. 328, 329-331 (SD Fla. 1987); cf. Gingold v. United States, 80 B. R. 555, 561 (Bkrtcy. Ct., ND Ga. 1987); R & L Refunds v. United States, 45 B. R. 733, 735 (Bkrtcy. Ct.,WD Ky. 1985); Gower v. Farmers Home Administration, 20 B. R. 519, 521-522 (Bkrtcy. Ct., MD" }, { "docid": "9579951", "title": "", "text": "to establish uniform (and rational) bankruptcy laws is seemingly paramount. See, e.g., McVey Trucking, Inc. v. Secretary of State of Illinois (In re McVey Trucking, Inc.), 812 F.2d 311 (7th Cir.1987), cert. den., sub. nom. Edgar v. McVey Trucking Co., 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); see generally Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247-302, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting), reh’g den. In the instant action involving sections 106(a) and 523(a)(8) of the Code, this trial bankruptcy court fully recognizes and is judicially sensitive to the strong presumption of the constitutionality of section 106(a) of the Code. Concomitantly, the court adopts the well reasoned analysis of the Honorable A. Thomas Small in In re York-Hannover Developments, Inc., 181 B.R. 271 (Bankr.E.D.N.C.1995), a pre- Seminole Tribe decision, holding that the Congress was within its constitutional authority when it amended section 106(a) of the Code in 1994 to expressly abrogate the states’ 11th Amendment and common law sovereign immunity with respect to the specifically enumerated Code provisions. See also, e.g., the following post-Seminole Tribe cases supporting constitutionality, In re Willis, 230 B.R. 619 (Bankr.E.D.Okla.1999); In re Ranstrom, 215 B.R. 454 (Bankr.N.D.Cal.1997); In re Bliemeister, 251 B.R. 383 (Bankr.D.Ariz.2000); In re Lees, 252 B.R. 441 (Bankr.W.D.Tenn.2000); the dissenting opinion in In re Straight, 248 B.R. 403, 421-430 (10th Cir. BAP 2000); contra, e.g., In re Mitchell, 222 B.R. 877 (9th Cir. BAP 1998); Morrell v. Franchise Tax Bd. (In re Morrell), 218 B.R. 87 (Bankr.C.D.Cal.1997); In re Taylor, 249 B.R. 571 (Bankr.N.D.Ga.2000); U.S. Dept. of Treasury v. Gosselin, 252 B.R. 854 (D.Mass.). The United States Supreme Court has articulated the following two-prong test to determine whether the Congress can validly abrogate states’ 11th Amendment sovereign immunity: (1) whether the Congress unequivocally expressed its intent to abrogate the states’ sovereign immunity, and (2) whether the Congress acted pursuant to a valid exercise of power. See, e.g., Seminole Tribe, 517 U.S. at 55-56, 116 S.Ct. 1114. Judge Small held in In re York-Hannover Developments, Inc., 181 B.R. 271 (Bankr.E.D.N.C.1995), that the Congress was within" }, { "docid": "7065821", "title": "", "text": "in bankruptcy courts in both turnover proceedings, see In re Prime, Inc., 44 B.R. 924, 927 (Bankr.W.D.Mo.1984) (dicta); see also In re Vazquez, 788 F.2d 130, 133 (3d Cir.1986) (action to recover debt collected in violation of § 524(a)), cert. denied sub nom. Vazquez v. Pennsylvania Dep’t of Public Welfare, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 365 (1986); but see In re Crum, 20 B.R. 160, 161 (Bankr.D.Idaho 1982); In re Regal Constr. Co., 18 B.R. 353, 358 (Bankr.D.Md.1982); In re Ramos, 12 B.R. 250 (Bankr.N.D.Ill.1981), as well as in preference actions, see Matter of McVey Trucking, Inc., 812 F.2d 311, 326-27 (7th Cir.), cert. denied sub nom. Edgar v. McVey Trucking Co., — U.S.-, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); In re T & D Mgt. Co., 40 B.R. 781, 789-90 (Bankr.D.Utah 1984) (dicta). However, the decisions allowing such actions either do not analyze the issue under the Supreme Court’s standards for finding a congressional waiver of eleventh amendment immunity or do not reflect an appreciation for the stringency of those standards. In sum, therefore, we find that turnover proceedings under § 542(b) and preference actions under § 547(b) seeking monetary recoveries from a state are outside the scope of § 106(e) and thus barred by the eleventh amendment. The trustee, nevertheless, argues that congressional intent is clear that § 106(c) at least allows a state to be sued for recovery of a preferential monetary transfer that is avoided under § 547(b). He points to a passage from the floor statements, concerning the applicability of § 106(c) to other bankruptcy issues, which he asserts supports his argument: “For example, section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit; contrary language in the House report to H.R. 8200 is thereby overruled,” 124 Cong.Rec., supra, at H11091, S17407. This legislative history, however, does not establish that Congress had the clear and unequivocal intention to waive eleventh amendment immunity as to actions against states for recovery of preferential money transfers. Whatever questions this passage may raise about Congress’" }, { "docid": "22797838", "title": "", "text": "of the Code. The plurality therefore ignores Congress’ careful choice of language and turns States into pre ferred actors. By allowing a trustee to recapture payments made to creditors 90 days before a bankruptcy petition is filed, the preference provision prevents anxious creditors from grabbing payments from an insolvent debtor and hence getting more than their fair share. After today, however, any State owed money by a debtor with financial problems will have a strong incentive to collect whatever it can, as fast as it can, even if doing so pushes the debtor into bankruptcy. Ordinary creditors will soon realize that States can receive more than their fair share; the very existence of this governmental power will cause these other creditors, in turn, to increase pressure on the debtor. See McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 328 (CA7), cert. denied, 484 U. S. 895 (1987). The turnover provision is designed to prevent third parties from keeping property of the debtor or from refusing to make payments owed to the debtor, thereby aiding the reorganization of the debtor’s af fairs or the orderly and equitable distribution of the estate. See United States v. Whiting Pools, Inc., 462 U. S. 198, 202-203 (1983). Exempting States from this provision, as well as from the preference provision, undermines these important policy goals of the Code. My conclusion that Congress intended § 106(c) to abrogate the States’ Eleventh Amendment immunity against money judgments requires me to decide whether Congress has the authority under the Bankruptcy Clause to do so. In Pennsylvania v. Union Gas Co., 491 U. S. 1, 19 (1989) (plurality opinion); id., at 57 (White, J., concurring in judgment), we held that Congress has the authority under the Commerce Clause to abrogate the States’ Eleventh Amendment immunity. I see no reason to treat Congress’ power under the Bankruptcy Clause any differently, for both constitutional provisions give Congress plenary power over national economic activity. See The Federalist No. 42, p. 271 (C. Rossiter ed. 1961) (J. Madison) (describing the Bankruptcy Clause and the Commerce Clause as “intimately" }, { "docid": "14319548", "title": "", "text": "claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose. 11 U.S.C. § 106(b) (emphasis added). In enacting the new provision, Congress effectively overruled two Supreme Court cases that had limited and denied the waiver of sovereign immunity, namely Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989) (a bankruptcy court could not enter a money judgment against a state that had not filed a proof of claim) and United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (former § 106(c) did not waive the sovereign immunity of the United States for an action seeking a monetary recovery in bankruptcy because the waiver was not “unequivocally expressed”). Id. at 32-34, 112 S.Ct. at 1014; see also H.R. Rep. No. 103-835, 103d Cong., 2nd Sess. 42 (Oct. 4,1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3350-51. 1. Abrogation of Sovereign Immunity EDD contends that the amendment to § 106 is unconstitutional in that it purports to abrogate EDD’s sovereign immunity as a bar against a monetary judgment. It contends that there is an “open question” whether Congress had authority to abrogate sovereign immunity under its Article I plenary Bankruptcy Clause powers. Only a few bankruptcy cases have analyzed this issue so far. The consensus of those is that, until the Supreme Court says otherwise, § 106 is a valid jurisdictional provision. See: In re Merchants Grain, Inc., 59 F.3d 630 (7th Cir.1994); In re J.F.D. Enterprises, Inc., 183 B.R. 342 (Bankr.D.Mass.1995); In re York-Hannover Developments, Inc., 181 B.R. 271 (Bankr.E.D.N.C.1995) (relying on the Seventh Circuit’s case In re McVey Trucking, Inc., 812 F.2d 311 (7th Cir.), cert. denied sub nom. Edgar v. McVey Trucking Co., 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987)); and In re Operation Open City, Inc., 170 B.R. 818 (S.D.N.Y.1994). The Eleventh Amendment of the Constitution provides: The Judicial power of the United States shall not be construed to extend to" }, { "docid": "7065812", "title": "", "text": "Cong. & Admin.News 5787, supra, including money judgments, see In re Inslaw, Inc., 76 B.R. 224, 234 (Bankr.D.D.C.1987). Section 106(b) allows “any claim against [a] governmental unit that is property of the estate” to be set off against a governmental unit’s “allowed claim or interest.” The debtor thus has a right to a setoff against a governmental unit “to the extent of” that unit’s claim against the estate, see H.R.Rep. No. 595, 1978 U.S.Code Cong. & Admin.News 5963, supra; S.Rep. No. 989, 1978 U.S.Code Cong. & Admin.News 5787, supra. Moreover, the “allowed claim” language has been construed as incorporating § 502(a)’s rule that “[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed” (emphasis added). See, e.g., In re Davis, 20 B.R. 519, 521 (Bankr.M.D.Ga.1982). Thus, § 106(b) is not triggered unless the governmental unit has asserted a claim against the estate. Section 106(c) provides that: Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— (1) a provision of this title that contains “creditor”, “entity”, or “governmental unit” applies to governmental units; and (2) a determination by the court of an issue arising under such a provision binds governmental units. The “Except as provided in” language that introduces this subsection unmistakably distinguishes it from subsections (a) and (b). Thus, while (a) and (b) are not triggered unless the government has asserted a claim against the debtor’s estate, (c) has no such requirement. Matter of Neavear, 674 F.2d 1201, 1204 (7th Cir.1982). Moreover, counterclaims and setoffs under (a) and (b) “may be bottomed on non-bankruptcy statutory or common law rights which could not otherwise form the basis for a law suit against the [government because of the sovereign immunity doctrine.” Matter of Community Hosp., 15 B.R. 785, 789 (Bankr.S.D.N.Y.1981). Subsection (c) relates only to issues that arise under “a provision of Title 11 ... that eontain[s] the word ‘creditor’ or the word ‘entity’ or the word ‘governmental unit.’ ” Davis, 20 B.R. at 522. The most important distinction, however, goes to the scope of" }, { "docid": "22797841", "title": "", "text": "Ga. 1982); Remke, Inc. v. United States, 5 B. R. 299, 300-302 (Bkrtcy. Ct., ED Mich. 1980). A leading bankruptcy commentator also reads § 106(c) to abrogate state sovereign immunity. 2 Collier on Bankruptcy *1106.04 (15th ed. 1989). See, e. g., § 303(b)(1) (permitting three or more “entities” to file an involuntary case against a debtor); § 303(c) (giving “creditors” who do not file an involuntary case the same rights as those who do); § 303(j) (requiring notice to all “creditors” before a court may dismiss an involuntary case); § 341(a) (requiring a meeting of “creditors”); § 343 (permitting “creditors” to examine the debtor); § 349(b)(3) (revesting property in an “entity” if the petition is dismissed); § 361 (setting forth adequate protection for certain property interests of an “entity”); § 363(c)(2)(A) (preventing use, lease, or sale of cash collateral assets absent consent of an interested “entity”); §§ 501 and 502 (regulating filing of proofs of claims by “creditors”); § 506(a) (granting secured status to lien “creditors”); § 553 (granting rights of setoff to certain “creditors”); §§ 702(a) and 705 (giving qualified “creditors” the right to vote for the trustee and the creditors’ committee); §§ 507 and 726 (setting forth priorities of distribution to “creditors”); § 727(c) (giving a “creditor” the right to object to a discharge); § 1102 (providing for court appointed creditors’ committee); § 1109(b) (giving a “creditor” the right to be heard on any issue); § 1121(c) (providing that a “creditor” may file a reorganization plan). See, e. g., §365 (permitting the trustee to assume or reject executory contracts and unexpired leases in certain circumstances); § 505 (permitting the bankruptcy court to determine the debtor’s tax liability in certain circumstances); § 525 (protecting the debtor against government discrimina tion in licensing and employment); § 1141 (binding “creditors” to the terms of a confirmed reorganization plan and discharging all other claims); § 1142 (permitting the bankruptcy court to require performance of any act necessary to carry out a confirmed reorganization plan); § 1143 (preventing an “entity” that fails to perform a required act from participating in the distribution of" }, { "docid": "22797840", "title": "", "text": "connected”); cf., ante, at 105 (Scalia, J., concurring in judgment). For the reasons stated, I respectfully dissent. Not surprisingly, most courts considering § 106(c) have concluded that it clearly allows a trustee to recover preferences from a State and to require a State to turn over money belonging to the debtor. See, e. g., WJM, Inc. v. Massachusetts Dept. of Public Welfare, 840 F. 2d 996, 1001 (CA1 1988); McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327 (CA7), cert. denied, 484 U. S. 895 (1987); Neavear v. Schweiker, 674 F. 2d 1201, 1202-1204 (CA7 1982); Rhode Island Ambulance Services, Inc. v. Begin, 92 B. R. 4, 6-7 (Bkrtcy. Ct., RI 1988); Tew v. Arizona State Retirement System, 78 B. R. 328, 329-331 (SD Fla. 1987); cf. Gingold v. United States, 80 B. R. 555, 561 (Bkrtcy. Ct., ND Ga. 1987); R & L Refunds v. United States, 45 B. R. 733, 735 (Bkrtcy. Ct.,WD Ky. 1985); Gower v. Farmers Home Administration, 20 B. R. 519, 521-522 (Bkrtcy. Ct., MD Ga. 1982); Remke, Inc. v. United States, 5 B. R. 299, 300-302 (Bkrtcy. Ct., ED Mich. 1980). A leading bankruptcy commentator also reads § 106(c) to abrogate state sovereign immunity. 2 Collier on Bankruptcy *1106.04 (15th ed. 1989). See, e. g., § 303(b)(1) (permitting three or more “entities” to file an involuntary case against a debtor); § 303(c) (giving “creditors” who do not file an involuntary case the same rights as those who do); § 303(j) (requiring notice to all “creditors” before a court may dismiss an involuntary case); § 341(a) (requiring a meeting of “creditors”); § 343 (permitting “creditors” to examine the debtor); § 349(b)(3) (revesting property in an “entity” if the petition is dismissed); § 361 (setting forth adequate protection for certain property interests of an “entity”); § 363(c)(2)(A) (preventing use, lease, or sale of cash collateral assets absent consent of an interested “entity”); §§ 501 and 502 (regulating filing of proofs of claims by “creditors”); § 506(a) (granting secured status to lien “creditors”); § 553 (granting rights of setoff to certain “creditors”);" }, { "docid": "22797837", "title": "", "text": "unit.” These include the Code provisions at issue in this case, i. e., the provision giving a trustee the power to avoid preferential payments made to “creditors,” §547, and the provision requiring “entities” to turn over property and money belonging to the debtor. §542. Thus, rather than reading § 106(c) in isolation as the plurality does, the provision should be read in light of the Code provisions containing the trigger words “creditor,” “entity,” and “governmental unit.” Only in this way is it possible to appreciate the limited extent to which Congress sought to abrogate the States’ sovereign immunity in § 106(c). See Kelly v. Robinson, 479 U. S. 36, 43 (1986) (Code should be read as an integrated whole). By expressly including States within the terms “creditor” and “entity,” Congress intended States generally to be treated the same as ordinary “creditors” and “entities,” who are subject to money judgments in a relatively small number of Code provisions. The effect of today’s decision is to exempt States from these provisions, which are crucial to the efficacy of the Code. The plurality therefore ignores Congress’ careful choice of language and turns States into pre ferred actors. By allowing a trustee to recapture payments made to creditors 90 days before a bankruptcy petition is filed, the preference provision prevents anxious creditors from grabbing payments from an insolvent debtor and hence getting more than their fair share. After today, however, any State owed money by a debtor with financial problems will have a strong incentive to collect whatever it can, as fast as it can, even if doing so pushes the debtor into bankruptcy. Ordinary creditors will soon realize that States can receive more than their fair share; the very existence of this governmental power will cause these other creditors, in turn, to increase pressure on the debtor. See McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 328 (CA7), cert. denied, 484 U. S. 895 (1987). The turnover provision is designed to prevent third parties from keeping property of the debtor or from refusing to make payments owed to" }, { "docid": "22797823", "title": "", "text": "were not within the scope of § 106(c), the court held that they were barred by the Eleventh Amendment. The Second Circuit’s decision conflicts with the decisions of the Third Circuit in Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F. 2d 130, 133, cert. denied, 479 U. S. 936 (1986), and the Seventh Circuit in McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327, cert. denied, 484 U. S. 895 (1987). We granted certiorari to resolve the conflict, 488 U. S. 1003 (1989), and we now affirm. Section 106 provides as follows: “(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose. - “(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate. “(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— “(1) a provision of this title that contains ‘creditor,’ ‘entity,’ or ‘governmental unit’ applies to governmental units; and “(2) a determination by the court of an issue arising under such a provision binds governmental units.” 11 U. S. C. § 106. Neither § 106(a) nor § 106(b) provides a basis for petitioner’s actions here, since respondents did not file a claim in either Chapter 7 proceeding. Instead, petitioner relies on § 106(c), which he asserts subjects “governmental units,” which includes States, 11 U. S. C. § 101(26), to all provisions of the Bankruptcy Code containing any of the “trigger” words in § 106(c)(1). Both the turnover provision, § 542(b), and the preference provision, § 547(b), contain trigger words — “an entity” is required to pay to the trustee a debt that is the property of the estate, and a trustee can under appropriate circumstances avoid the transfer of property to “a creditor.” Therefore, petitioner reasons, those provisions apply to respondents “notwithstanding" }, { "docid": "1142137", "title": "", "text": "debtors’ bankruptcy filing, wages totalling $1,283.29 were levied against and were paid over to the USA-IRS. It is this amount which the debtors allege to be a voidable preference pursuant to 11 U.S.C. § 547. In support of its motion to dismiss for lack of jurisdiction, the defendant asserts that the United States has not waived its sovereign immunity in this case. The defendant expounds at length in support of this assertion, but when its argument is reduced to the essentials, the USA-IRS principally relies on a recent Supreme Court case, Hoffman v. Conn. Dept. of Income Maintenance, 492 U.S. 96, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989) and its progeny. The defendant cites Hoffman for the proposition that 11 U.S.C. § 106(c) does not constitute a waiver of sovereign immunity by a state in preference actions, among others. Hoffman dealt in part with an action by a Chapter 7 trustee to recover as a preference an amount paid to the defendant Connecticut Department of Revenue Services for state taxes, interest, and penalties. The Supreme Court affirmed the Second Circuit’s denial of the trustee’s preference claim by concluding that 11 U.S.C. § 106(c) does not authorize monetary recovery from the states. 109 S.Ct. at 2823. The Court states “Under this construction of 106(c), a State that files no proof of claim would be bound, like other creditors, by discharge of debts in bankruptcy, including unpaid taxes, ... but would not be subjected to monetary recovery.” Id. The defendant also cites Hoffman in rebuttal of a Seventh Circuit case heavily relied upon by the plaintiff, McVey Trucking, Inc. v. Secretary of the State of Ill. (In re McVey Trucking, Inc.), 812 F.2d 311 (7th Cir.1987), cert. denied, 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). McVey involved a debtor’s preference action to recover money transferred to the Illinois Secretary of State for prospective highway-use and flat-weight taxes. The Bankruptcy Court and the District Court both held that they lacked jurisdiction over the Secretary under the Eleventh Amendment. 812 F.2d at 313. The Seventh Circuit Court of Appeals reversed and" }, { "docid": "7065820", "title": "", "text": "473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). Moreover, statutes that purport to waive immunity are construed strictly in the sovereign’s favor. See Gray v. Bell, 712 F.2d 490, 508 (D.C.Cir.1983) (citing McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951)), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). We do not believe that Congress intended to waive eleventh amendment immunity and to authorize suits for money damages against a state by enacting a provision that “binds” governmental units by bankruptcy court “determination[s].” Congress has in no way made “its intention unmistakably clear in the language of the statute” that states are subject to adversarial proceedings in bankruptcy that involve payment of state funds to the estate. See Atascadero, 473 U.S. at 246,105 S.Ct. at 3149 (statutory-authorization of suit in federal court against any federal fund recipient insufficient to waive state’s eleventh amendment immunity). A few courts have interpreted § 106(c) to allow adversarial actions for money recoveries against .states in bankruptcy courts in both turnover proceedings, see In re Prime, Inc., 44 B.R. 924, 927 (Bankr.W.D.Mo.1984) (dicta); see also In re Vazquez, 788 F.2d 130, 133 (3d Cir.1986) (action to recover debt collected in violation of § 524(a)), cert. denied sub nom. Vazquez v. Pennsylvania Dep’t of Public Welfare, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 365 (1986); but see In re Crum, 20 B.R. 160, 161 (Bankr.D.Idaho 1982); In re Regal Constr. Co., 18 B.R. 353, 358 (Bankr.D.Md.1982); In re Ramos, 12 B.R. 250 (Bankr.N.D.Ill.1981), as well as in preference actions, see Matter of McVey Trucking, Inc., 812 F.2d 311, 326-27 (7th Cir.), cert. denied sub nom. Edgar v. McVey Trucking Co., — U.S.-, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); In re T & D Mgt. Co., 40 B.R. 781, 789-90 (Bankr.D.Utah 1984) (dicta). However, the decisions allowing such actions either do not analyze the issue under the Supreme Court’s standards for finding a congressional waiver of eleventh amendment immunity or do not reflect an appreciation for the stringency of those" }, { "docid": "1142138", "title": "", "text": "Court affirmed the Second Circuit’s denial of the trustee’s preference claim by concluding that 11 U.S.C. § 106(c) does not authorize monetary recovery from the states. 109 S.Ct. at 2823. The Court states “Under this construction of 106(c), a State that files no proof of claim would be bound, like other creditors, by discharge of debts in bankruptcy, including unpaid taxes, ... but would not be subjected to monetary recovery.” Id. The defendant also cites Hoffman in rebuttal of a Seventh Circuit case heavily relied upon by the plaintiff, McVey Trucking, Inc. v. Secretary of the State of Ill. (In re McVey Trucking, Inc.), 812 F.2d 311 (7th Cir.1987), cert. denied, 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). McVey involved a debtor’s preference action to recover money transferred to the Illinois Secretary of State for prospective highway-use and flat-weight taxes. The Bankruptcy Court and the District Court both held that they lacked jurisdiction over the Secretary under the Eleventh Amendment. 812 F.2d at 313. The Seventh Circuit Court of Appeals reversed and remanded after concluding in a lengthy opinion that Congress intended through 11 U.S.C. §§ 106(c) and 547(b) to create a cause of action for money damages enforceable against a state in federal court. Id. at 327. The defendant asserts that the Supreme Court’s Hoffman decision effectively overrules this holding of the Seventh Circuit in McVey. For numerous reasons, this Court finds the defendant’s reliance on the Hoffman decision unconvincing when applied to the facts of this case. First, Hoffman is a plurality decision which at most holds that the states cannot be sued pursuant to 11 U.S.C. § 106(c) for money damages. This holding was reached by a five-Justice combination involving two theories, one finding that Congress lacks authority to waive the sovereign immunity of states, and the other holding that the Bankruptcy Code’s waiver provision was not intended to waive the sovereign immunity of states. Four Justices dissented, concluding that Congress intended § 106(c) to abrogate the states’ Eleventh Amendment immunity against money judgments. Hoffman, 109 S.Ct. at 2824-25 (Marshall J., Brennan J., Blackmun" }, { "docid": "18696631", "title": "", "text": "is found in § 106 and its legislative history. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 317 (1977). Until recently, the interpretation given by the Third Circuit Court of Appeals to 11 U.S.C. § 106(c) suggested that Congress intended that the violation by a state governmental entity of a statutory provision which expressly referred to a governmental unit (such as in § 525(a)) could result in an award of provable damages. See Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F.2d 130 (3d Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 365 (1986). See also In re McVey Trucking, Inc., 812 F.2d 311 (7th Cir.), cert. denied, 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). Cf. Gardner v. Pennsylvania Dept. of Public Welfare, 685 F.2d 106, 109 (3d Cir.), cert. denied, 459 U.S. 1092, 103 S.Ct. 580, 74 L.Ed.2d 939 (1982) (holding the § 106(c) codified the longstanding power of Congress to adversely affect state held liens in bankruptcy). However, in Hoffman v. Connecticut Dept. of Income Maintenance, — U.S. -, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989), the Supreme Court held that § 106(c) did not, by itself, override a state’s sovereign immunity from damage awards. The Court was careful to note, though, that the state entity had not filed a proof of claim in Hoffman .and, as a result, the provisions of § 106(a) and (b) were inapplicable. The Hoffman decision (along with other Court decisions such as Will), the absence of an express remedy in § 525(a), and the congressional position articulated in the legislative history surrounding § 106, yield the conclusion that unless a governmental entity files a proof of claim, only declaratory and injunctive relief could be awarded against that entity under § 525(a) and no damages against it would lie. Cf. In re Browne, 101 B.R. 188 (Bankr.D.Alaska 1989) (absent a waiver of immunity, damages may not be awarded against a state entity in a turnover proceeding). In this case the state agency, PHEAA, filed a proof of claim and received distribution under a confirmed plan. Thus, the" }, { "docid": "21031808", "title": "", "text": "2882, 49 L.Edüd 752 (1976). Indeed, it is well settled that a presumption exists in favor of the constitutionality of an act of the Congress. Regan v. Time, Inc., 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). Mere uncertainty as to the constitutionality of a statute does not rebut that presumption. See, e.g., In re Lombard-Wall, Inc., 44 B.R. 928 (Bankr.S.D.N.Y.1984). The power granted by the Bankruptcy Clause in Article I, Section 8, Clause 4 of the Constitution appears to be more plenary in nature than the Indian Commerce Clause (or the Interstate Commerce Clause). The unambiguous language of the Bankruptcy Clause constitutionally authorizes the Congress to establish uniform laws on the subject of bankruptcies throughout the United States. The constitutional authorization for the Congress to establish uniform (and rational) bankruptcy laws is seemingly paramount. See, e.g., McVey Trucking, Inc. v. Secretary of State of Illinois (In re McVey Trucking, Inc.), 812 F.2d 311 (7th Cir.1987), cert. den., sub. nom. Edgar v. McVey Trucking Co., 484 U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); see generally Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247-302, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting), reh’g den. In the instant action involving sections 106(a) and 523(a)(8) of the Code, this trial bankruptcy court fully recognizes and is judicially sensitive to the strong presumption of the constitutionality of section 106(a) of the Code. Concomitantly, the court adopts the well reasoned analysis of the Honorable A. Thomas Small in In re York-Hannover Developments, Inc., 181 B.R. 271 (Bankr.E.D.N.C.1995), a pre-Seminole Tribe decision, holding that the Congress was within its constitutional authority when it amended section 106(a) of the Code in 1994 to expressly abrogate the states’ 11th Amendment and common law sovereign immunity with respect to the specifically enumerated Code provisions. See also, e.g., the following post-Seminole Tribe cases supporting constitutionality, In re Willis, 230 B.R. 619 (Bankr.E.D.Okla.1999); In re Ranstrom, 215 B.R. 454 (Bankr.N.D.Cal.1997); the dissenting opinion in In re Straight, 248 B.R. 403," }, { "docid": "7065827", "title": "", "text": "L.Ed.2d 598 (1982). In 1984, Congress enacted 28 U.S.C. §§ 157 and 1334 to replace § 1471. In the meantime, during which the Willington and Zera adversarial proceedings were commenced, “[a]n emergency resolution adopted by the United States District Judges for the District of Connecticut temporarily restored the bankruptcy court’s” jurisdiction over civil proceedings \"arising in or related to” title 11 cases, subject to “review and control by the district court,\" Willington, 72 B.R. at 1007 n. 12. . The district court relied in part on the argument that the bankruptcy court's reading of § 106(c) rendered subsections (a) and (b) “mere surplusage,\" see 72 B.R. at 1007-08 & n. 13, 1011 (citing In re Regal Constr. Co., 18 B.R. 353 (Bankr.D.Md.1982)). However, the bankruptcy court’s interpretation leaves intact critical differences that preclude (a) and (b) from being considered surplusage. As observed in Matter of Neavear, 674 F.2d 1201 (7th Cir.1982), § 106(c), \"unlike sections 106(a) and (b), does not condition the waiver of sovereign immunity upon the filing of a proof of claim,” id. at 1204. See also Matter of McVey Trucking, Inc., 812 F.2d 311, 327 (7th Cir.) (rejecting surplusage argument on basis of Neavear), cert. denied sub nom. Edgar v. McVey Trucking Co., — U.S. -, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987). Moreover, § 106(a) and (b) are not tied to any particular Code sections, while subsection (c) applies only to those Code provisions containing “creditor,” \"entity,” or \"governmental unit.” We, therefore, do not rely upon the surplusage argument in our analysis. . Although § 106 speaks only of \"sovereign immunity,” that term clearly encompasses eleventh amendment immunity to the extent that the governmental unit in question is a state. As Judge Krechevsky correctly observed: The term \"sovereign immunity” embraces two distinct concepts — “whether [a State] may be sued,” Pennhurst State School & Hospital v. Halderman, [465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1985),] ... or common-law sovereign immunity, and “where [a State] may be sued,” id., or constitutional sovereign immunity in the [eleventh [a]mendment. 39 B.R. at 788-89. Thus, if" }, { "docid": "208850", "title": "", "text": "of the enactment of § 106(c) on suits of this type is not clear from a review of the decisions in the bankruptcy courts to date. Courts have uniformly held that § 106(c) waives the sovereign immunity of the federal government as to suits for retrospective money damages. See, e.g., Remke, Inc. v. United States (Matter of Remke, Inc.), 5 B.R. 299 (Bkrtcy.E.D.Mich.1980) (Preference action against I.R.S.). Ellenberg v. Dekalb County (In re Maytag Sales and Service, Inc.), 23 B.R. 384, 9 B.C.D. 908, 7 C.B.C.2d 405 (Bkrtcy.N.D.Ga.1982), holds, in the alternative, that § 106(c) waives any alleged sovereign immunity of a Georgia county in a preference action. Cf. C.A. Wright, Law of Federal Courts, § 46 at 274 (4th ed. 1983) (Counties do not share States’ Eleventh Amendment immunity). When a State has filed a claim against the estate, bankruptcy courts have held that § 106(a) and (b) authorize suits within that court against the State for retrospective monetary relief. See, e.g., In re Greenwald, 33 B.R. 607 (Bkrtcy.S.D.N.Y.1983) (Section 106(b) set-off of debtor’s, nursing home’s, claim for Medicaid reimbursement from State Department of Health against claim filed by Department against estate not barred by Eleventh Amendment); Ehre v. People of the State of New York (In re Adirondack Ry. Corp.), 28 B.R. 251, 10 B.C.D. 256 (Bkrtcy.N.D.N.Y.1983) (Debtor’s claim for payments from State on construction contract arose from the same transaction as State’s claim for withholdings from employee salaries and sales tax on materials used by debtor to perform contract; State’s sovereign immunity waived pursuant to § 106(a)). And bankruptcy courts have taken jurisdiction over § 542(a) turnover actions against a State, without any discussion of the Eleventh Amendment or State consent. See, e.g., Aegean Fare, Inc. v. Commonwealth of Massachusetts (In re Aegean Fare, Inc.), 33 B.R. 745 (Bkrtcy.D.Mass.1983); Troy Indus. Catering Service v. State of Michigan (Matter of Troy Indus. Catering Service), 2 B.R. 521, 5 B.C.D. 1243, 1 C.B.C.2d 321 (Bkrtcy.E.D.ich.1980). See also United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (I.R.S. is “entity” subject to §" } ]

[ { "docid": "18584151", "title": "", "text": "business. The subjective intent of the debtor in possession does not rewrite the Bankruptcy Code. Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, 33 S.Ct. 9, 57 L.Ed. 107 (1912) (Sherman Antitrust Act could not be avoided by good motives of party). Dealing in real estate or leases was not D & R’s ordinary business. D & R treated and sold wood products. Although necessary to its business, entering into leases was not an everyday, run of the mill transaction for D & R. The purpose behind 11 U.S.C. § 363 is to allow businesses to continue their daily operations without incurring the burden of obtaining court approval or notifying creditors for minor transactions, while protecting secured creditors and others from the dissipation of the estate’s assets. H.R.Rep. No. 595, 95th Cong., 1st Sess. 181-82 (1977) reprinted in 1978 U.S.Cong. & Ad.News 5787, 6141, 6142. In light of this legislative purpose, the post-petition leases were not entered into in the ordinary course of business. The estate is not liable by virtue of the post-petition leases. In re First International Services Corp., 25 B.R. 66, 70 (Bankr.D.Conn.1982) (agreement to sell shares of stock without notice and opportunity for comment held void). B. D & R’s Liability For The Holdover Period. BN and D & R entered into the post-petition leases on March 1,1983. Between the date the petition was filed, November 22, 1982, and March 1, 1983, D & R continued to operate the wood treatment plant. Filing for reorganization under Chapter 11 creates a bankruptcy estate comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). No formalities are required to allow a bankruptcy estate to continue operating under a prepetition lease. In re Pacific Express, Inc.; 780 F.2d 1482, 1487 (9th Cir.1986). A prepetition lease under which the debtor in possession continued to operate may be rejected under 11 U.S.C. § 365(d)(2) at any time prior to the confirmation of the plan. In re Shoppers Paradise, Inc., 8 B.R. 271, 278 (Bankr.S.D.N.Y.1980). D" } ]

[ { "docid": "1135445", "title": "", "text": "valid postpetition lease is treated as an administrative expense. In re Chugiak Boat Works, 18 B.R. 292, 296-297 (Bankr.D.Alaska 1982). Therefore, I reject the committee’s implicit argument that this court’s order expressly granting assumption can now be challenged. Even if it could, it would not alter the result that Mushroom and M & M were parties to a valid lease agreement entered into postpetition. B. Section 365(a) permits a debtor in possession to assume an unexpired lease subject to court approval. Here that approval was granted upon due notice to parties in interest. Section 365(b)(1)(A) obligates the debtor in possession, “at the time of assumption”, to cure or provide “adequate assurance” of a “prompt cure” of any prepetition defaults. In this matter, the parties agreed to a payment schedule designed to cure the prepetition defaults. Despite the statutory language, the committee argues that Mushroom never assumed the M & M lease because it failed to cure the prepetition lease default even though it retained possession of the leased premises and made a partial payment toward that default. Without any supporting case citation, it contends that there can be no assumption under § 365 until all lease defaults are cured. I disagree. Unless the court approves of a different arrangement, a lease is assumed once court approval is obtained. The statutory language of § 365(b)(1)(A) allows a debtor in possession time to cure a prepetition default, so long as the cure is prompt and there is “adequate assurance” of payment. Providing “adequate assurance” of a prompt cure “is a substitute for the taking of the action.’’ 2 Collier on Bankruptcy, 11365.04, at 365-37 (15th ed. 1987) (emphasis added). If a lessor, or any other party in interest, is dissatisfied with the proposed cure, it is free to object to the debtor’s motion. Again, here the parties agreed to provide a cure of the prepetition lease default over a four month period. Since M & M and the committee were satisfied with the debtor’s offer, both in terms of timing and in terms of adequate assurance, it was within the discretion of" }, { "docid": "1135441", "title": "", "text": "the creditor’s committee here understood the potential adverse consequences of Mushroom’s motion to assume M & M’s lease and sought to protect the interests of unsecured creditors by becoming involved in the assumption decision. Insofar as rental payments falling due post-assumption are concerned, the committee protected its members rights. However, as I will discuss below, the committee did not reduce the estate’s liability to cure the prepetition lease default. III. A. The committee’s first position is that the lease was never assumed and thus the pre-petition default remains an unsecured claim. The committee argues that the debtor’s motion to assume was granted on November 5,1985, five days after the lease had expired. Citing the proposition, with which I have no quarrel, that a lease which has expired prepetition cannot be assumed postpetition, see e.g., In re Triangle Laboratories, Inc, 663 F.2d 463 (3d Cir.1981); In re DeSantis, 66 B.R. 998 (Bankr.E.D.Pa.1986), the creditor’s committee then argues that the debtor had no power to assume the M & M lease on November 5, 1985. This contention overlooks some critical facts and legal principles. The committee cannot contend that the lease is automatically rejected by virtue of 11 U.S.C. § 365(d)(4) since the debtor filed its motion to assume within the sixty day statutory time period. See In re National Paragon Corp., 74 B.R. 180 (E.D.Pa.1987); Matter of Condominium Administrative Services, Inc., 55 B.R. 792, 798-799 (Bankr.M.D.Fla.1985). Nor can the committee argue that assumption was entered into without requisite court approval. See In re Walat Farms, Inc., 69 B.R. 529 (Bankr.E.D.Mich.1987); In re Marple Publishing Co. Rather, the committee posits that the delay in ruling upon the motion beyond October 31, 1985 — the date the first lease option expired — which was caused, at least in part, by the committee’s negotiation efforts, negated the debtor’s right to assume. Even if that position were correct, that argument should have been made prior to the entry of the order of November 5, 1985, granting the motion to assume, not many months later. If the committee believed the order of November 5, 1985, which" }, { "docid": "21582764", "title": "", "text": "that, because there is no provision in the bankruptcy code precluding it, section 365(f)(3) can be waived “by those for whose benefit it has been enacted.” Cukierman v. Mechanics Bank of Richmond (In re J.F. Hink & Son), 815 F.2d 1314, 1318 (9th Cir.1987). Applying this rationale to section 365(c), we conclude that there is no provision in the Code precluding its waiver. Section 365(d) provides for the rejection of residential leases or executory contracts for real property and for nonresidential leases of real property where the debtor does not move to assume them within 60 days. 11 U.S.C. § 365(d). There is no provision providing for the rejection of a nonresidential executory contract to purchase real property if it is not assumed within a certain period of time. Accordingly, the lessors in this case could have waived their objection to the assumption of the option to purchase under section 365(c)(2). Likewise, if the lessors intended to waive their right to plead section 365(c)(2) and to induce Easebe to rely on their waiver, and Easebe did rely to its detriment, then they are estopped from later raising the de fense. See In re J.F. Hink & Son, 815 F.2d at 1318; Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1096 (9th Cir.1985). The bankruptcy court found that the lessors’ conduct did not operate to waive their rights under section 365(c)(2) or to estop them from raising the argument. It found that while the lessors did discuss terms upon which they would be willing to sell the property to Easebe, they had no reason to believe that Easebe thought that the option to purchase was assumed. These findings are not clearly erroneous. See In re Woodson Co., 813 F.2d at 270. The record indicates that the lessors were not notified that Easebe wanted to assume both the lease and the option in the same court proceedings and that the option was not discussed during the hearing on Easebe’s application to assume the lease. Moreover, an option to purchase real property is different from a lease and raises different concerns. Had the owners" }, { "docid": "21582766", "title": "", "text": "been aware that Easebe was attempting to assume both, they presumably would have requested appropriate assurances in addition to the insurance concerns they raised. Accordingly, the lessors did not waive their right to assert section 365(c)(2) and were not estopped from doing so. Our decision in In re J.F. Hink & Son, 815 F.2d 1314 (9th Cir.1987), does not dictate a contrary result. In re J.F. Hink & Son held that a party to whom the debtor assigned its interest in an unexpired lease was estopped from asserting 11 U.S.C. § 365(f)(3) to deny that he had accepted all of the lease terms. In that case, however, the estopped party participated directly in proceedings to assign the lease and testified that he knew and understood all of the terms of the lease. His behavior unequivocally induced reliance by the other parties as well as the court. The lessors here did not engage in behavior even remotely similar to that featured in J.F. Hink & Son. The lessors request that Easebe’s attorney be sanctioned and instructed to pay the lessor’s costs of appeal is denied. While we find Easebe’s arguments unpersuasive, because of the limited judicial authority on the application of 11 U.S.C. § 365(c)(2), we cannot conclude that “the result is obvious or the arguments of error are wholly without merit.” United States v. Nelson (In re Becraft), 885 F.2d 547, 548 (9th Cir.1989), quoting Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir.1986). AFFIRMED. . David A. Gill was appointed Chapter 11 trustee on September 17, 1987. . Section 365(c) states in pertinent part: The trustee may not assume or assign any executory contract or unexpired lease of the debtor, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties, if— (2) such contract is a contract to make a loan, or extend other debt financing of financial accommodations, to or for the benefit of the debtor, or to issue a security of the debtor; 11 U.S.C. § 365(c). . The lessors are also not precluded by the law of the case" }, { "docid": "21582763", "title": "", "text": "365(c)(2) also protects the lessor or other party to an executory contract from financial dealings with a Chapter 11 debtor, unlike section 365(b)(4), its protection is not triggered by the debtor’s default on an unexpired lease; it is a complete prohibition. See 2 Collier, On Bankruptcy at ¶1 365.05[1]. There is no indication in the legislative history of section 365(c)(2) that, if the financing is secured by a deed of trust on real property, then section 365(c)(2) is not applicable. We therefore find that the section 365(c)(2) prohibits Easebe from assuming the option to purchase. This conclusion, however, does not end all inquiry. We must also determine whether the lessors waived their right to raise a section 365(c)(2) defense and were therefore es-topped from raising it when Easebe attempted to exercise the option. This court has not had occasion to address the issue of whether a party to an executive contract can waive its right to assert section 365(c)(2) as a defense to a. debtor’s attempt to assume an executory contract. We have held, however, that, because there is no provision in the bankruptcy code precluding it, section 365(f)(3) can be waived “by those for whose benefit it has been enacted.” Cukierman v. Mechanics Bank of Richmond (In re J.F. Hink & Son), 815 F.2d 1314, 1318 (9th Cir.1987). Applying this rationale to section 365(c), we conclude that there is no provision in the Code precluding its waiver. Section 365(d) provides for the rejection of residential leases or executory contracts for real property and for nonresidential leases of real property where the debtor does not move to assume them within 60 days. 11 U.S.C. § 365(d). There is no provision providing for the rejection of a nonresidential executory contract to purchase real property if it is not assumed within a certain period of time. Accordingly, the lessors in this case could have waived their objection to the assumption of the option to purchase under section 365(c)(2). Likewise, if the lessors intended to waive their right to plead section 365(c)(2) and to induce Easebe to rely on their waiver, and Easebe" }, { "docid": "1135443", "title": "", "text": "was entered expressly with its consent, was improper, it was free to file an appeal from that order. See In re National Paragon Corp. See generally In re Comer, 716 F.2d 168, 171-174 (3d Cir.1983) (order granting motion for relief from stay may be appealed). Similarly, the lessor was free to challenge the debtor’s motion based upon the expiration of the lease if M & M opposed assumption. See e.g., In re Petralex Stainless, Ltd., 78 B.R. 738 (Bankr.E.D.Pa.1987). Since neither the lessor nor the committee objected to the debtor’s motion, and an order was duly entered and never challenged, the order is binding and waives any defects to assumption that may have existed. See In re J. Woodson Hays, Inc., 69 B.R. 303 (Bankr.M.D.Fl.1987). Cf. In re J.F. Hink & Son, 815 F.2d 1314 (9th Cir.1987) (provisions of § 365(f)(3) may be waived). Even if I were to accept the committee’s position that the lease was never validly assumed, I would view the debtor’s agreement as a new postpetition lease arrangement with M & M, either within or without the ordinary course of business, pursuant to 11 U.S.C. § 363(b), (c). The requisite notice and hearing was provided and court approval was obtained. Compare In re Dant and Russell, Inc., 67 B.R. 360, 362-363 (D.Or.1986) (postpetition leases were invalid as no notice and opportunity for a hearing provided) with Richmond Leasing Co. v. Capital Bank N.A. The limitations upon lease assumptions, embodied in § 365, do not apply to postpetition leases entered into by virtue of § 363. Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d at 1311: Moreover, to the extent that the amended lease represents a true renegotiation of the obligations ... it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the code suggests that the debtor may not modify its contracts when all parties to the contracts consent. Accord, In re Schuld Manufacturing Co., 43 B.R. 535 (Bankr.W.D.Wis.1984). In addition, a breach of a" }, { "docid": "1135451", "title": "", "text": "limited to such leases although § 365 also applies to executory contracts. . While section 365 speaks in terms of the trustee’s powers, a debtor in possession has the rights and powers of the trustee. 11 U.S.C. § 1107. Accord, e.g. In re Marple Publishing Co., 20 B.R. 933, 935 (Bankr.E.D.Pa.1982). . To the extent that either Matter of Robinson Truck Line, Inc., 47 B.R. 631 (Bankr.N.D.Miss.1985) or Matter of Schatz Federal Bearings Co., Inc., 5 B.R. 549 (Bankr.S.D.N.Y.1980) may be read to apply a different result for prepetition defaults of assumed labor contracts, I would respectfully disagree. Except as modified by 11 U.S.C. § 1113, unexpired labor contracts are treated as executory contracts governed by § 365. N.L.R.B. v. Bildisco and Bildisco. . Thus, if the rental increase demanded by M & M were to alter the analysis from that of a lease assumption to that of postpetition lease creation, Mushroom had the power to enter into such an arrangement with M & M’s consent and it received court approval for the postpetition agreement after requisite notice. . The three cases cited by the committee all concern the application of §§ 365(d)(3) and (4), not the issue at bench. Moreover, the committee’s argument is belied by those decisions stating that the prepetition default becomes an administrative expense upon assumption. See LJC Corp. v. Boyle. .Although not requested by the committee, to hold otherwise would require M & M to return the one payment it did receive, as unsecured claims in this case will not be paid in full. . By this analysis, the debtor could have immediately converted a $59,000.00 unsecured claim into a $48,000.00 unsecured claim by never occupying the premises." }, { "docid": "18765047", "title": "", "text": "717 (Bankr.S.D.Ind.1982). Similarly, the- other party cannot hold out for concessions from the debtor beyond those required to provide adequate assurance. See In re Lafayette Radio Electronics Corp., 9 B.R. 993, 998 (E.D.N.Y.1981). We conclude that RLC’s recognizing an event of default in RTC’s failure to perform the new covenants, which were included in the amended lease in order to assure GECC that RTC would perform its guarantee, is part of RLC’s offer of adequate assurance of future performance to GECC. See In re Kennesaw Dairy Queen Brazier, 28 B.R. 535, 536 (N.D.Ga.1983) (stating, “The fact that debtors may cure defaults and reinstate contracts or leases also is perhaps the clearest example of the modification of an executory contract or unexpired lease.”). Moreover, to the extent that the amended lease represents a true renegotiation of the obligations of RLC, RTC and GECC, it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the Code suggests that the debtor may not modify its contracts when all parties to the contract consent. Although § 1107 provides that a court may limit the debtor’s exercise of the rights of the trustee, including the § 1108 right to operate the business, in the absence of special circumstances or a specific Code provision, we see no reason to require the debtor to do more than justify its actions under the “business judgment” standard if creditors object. More exacting scrutiny would slow the administration of the debt- or’s estate and increase its cost, interfere with the Bankruptcy Code’s provision for private control of administration of the estate, and threaten the court’s ability to control a case impartially. See In re Airlift International, Inc., 18 B.R. 787, 789 (Bankr.S.D.Fla.1982); In re Curlew Valley Assocs., 14 B.R. 506, 509-514 (Bankr.D.Utah 1981). This business judgment standard thus does not differ from the business judgment inquiry already undertaken and resolved in favor of the amended lease under § 365. Accordingly, the bankruptcy court did not err in approving the lease" }, { "docid": "5162108", "title": "", "text": "omitted). The widely developed standard of the business judgment test has been applied as an alternative to the previous standard that only “burdensome” executory contracts could be rejected. In Re W & L Associates, Inc., 71 B.R. 962, 966 (Bankruptcy E.D.Pa.1987) Furthermore, the business judgment test [is not considered] to be a strict standard to meet. Rather, the test merely requires a showing by the trustee or debtor in possession that rejection of the contract will be likely to benefit the estate. Id. at 966, citing National Labor Relations Board v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984). The Fifth Circuit has also recognized that “more exacting scrutiny would slow the administration of the debtor’s estate and increase its cost, interfere with the Bankruptcy Code’s provision for private control of administration of the estate, and threaten the courts ability to control a case impartially.” Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1311 (5th Cir.1985). The Bankruptcy Court found that the merger would be in the best interest of the Debtor’s estate. Thus, the sixty-day notice provision of the Novation Agreement was waived. Debtor contends that if this Court were to find that Appellant was entitled to sixty days notice, failure to give the notice was harmless error. This Court disagrees. The sixty-day notice provision became effective when Debtor requested authority for the merger of the pension plans. This merger clearly affected the Appellant’s interest in the plan which satisfied the requirement of a material change of the provision. Further, a debtor may not reap benefits by accepting part of an executory contract and rejecting part. Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1311 (5th Cir.1985). Finally, Section 365(a) of the Bankruptcy Code clearly states that a rejection of an executory contract may only be done with the court’s approval. 11 U.S.C. § 365(a). See In Re W & L Associates, Inc., 71 B.R. 962, 966 (Bkrtcy.E.D.Pa.1987). Debtor cites National Labor Relations Board v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), as authority" }, { "docid": "1135442", "title": "", "text": "overlooks some critical facts and legal principles. The committee cannot contend that the lease is automatically rejected by virtue of 11 U.S.C. § 365(d)(4) since the debtor filed its motion to assume within the sixty day statutory time period. See In re National Paragon Corp., 74 B.R. 180 (E.D.Pa.1987); Matter of Condominium Administrative Services, Inc., 55 B.R. 792, 798-799 (Bankr.M.D.Fla.1985). Nor can the committee argue that assumption was entered into without requisite court approval. See In re Walat Farms, Inc., 69 B.R. 529 (Bankr.E.D.Mich.1987); In re Marple Publishing Co. Rather, the committee posits that the delay in ruling upon the motion beyond October 31, 1985 — the date the first lease option expired — which was caused, at least in part, by the committee’s negotiation efforts, negated the debtor’s right to assume. Even if that position were correct, that argument should have been made prior to the entry of the order of November 5, 1985, granting the motion to assume, not many months later. If the committee believed the order of November 5, 1985, which was entered expressly with its consent, was improper, it was free to file an appeal from that order. See In re National Paragon Corp. See generally In re Comer, 716 F.2d 168, 171-174 (3d Cir.1983) (order granting motion for relief from stay may be appealed). Similarly, the lessor was free to challenge the debtor’s motion based upon the expiration of the lease if M & M opposed assumption. See e.g., In re Petralex Stainless, Ltd., 78 B.R. 738 (Bankr.E.D.Pa.1987). Since neither the lessor nor the committee objected to the debtor’s motion, and an order was duly entered and never challenged, the order is binding and waives any defects to assumption that may have existed. See In re J. Woodson Hays, Inc., 69 B.R. 303 (Bankr.M.D.Fl.1987). Cf. In re J.F. Hink & Son, 815 F.2d 1314 (9th Cir.1987) (provisions of § 365(f)(3) may be waived). Even if I were to accept the committee’s position that the lease was never validly assumed, I would view the debtor’s agreement as a new postpetition lease arrangement with M &" }, { "docid": "6256415", "title": "", "text": "under § 365(f)(1) of the Bankruptcy Code). The cases cited by Mass Mutual are distinguishable. In Cukierman v. Mechanics Bank of Richmond (In re J.F. Hink & Son), 815 F.2d 1314, 1317-18 (9th Cir.1987), the court found a waiver of rights to challenge post-assignment rent increases where the as-signee expressly consented to it in the lease assignment agreement. No such pact exists here. In In re Village Rathskeller, Inc., 147 B.R. 665, 671-72 (Bankr.S.D.N.Y.1992), the court enforced a subordination provision after finding that § 365(f)(1) was inapplicable. Mass Mutual contends that in authorizing Jamesway to assume the Newberry Lease, we necessarily found that assumption of that lease is in the best interests of the estate, even if the sums allegedly due under ¶ 17 are payable to Mass Mutual. It argues that as a matter of fact, ¶ 17 did not impair James-way’s ability to assign the Newberry Lease and as a legal matter, under § 365(f) James-way must abide by the burdens of the assumed lease. Mass Mutual opposed the Rite Aid Motion asserting that Jamesway and Rite Aid failed to. provide adequate assurance of future performance under the Newberry Lease. It contended that Rite Aid’s then intended (and now current) use of the premises for non-retail purposes breached use provisions in other tenants’ leases in Newberry Commons and violated § 365(b)(3)(C) of the Bankruptcy Code. Under that section, for purposes of §§ 365(b)(1) and 365(f)(2)(B) of the Bankruptcy Code, adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance that assumption or assignment of such lease is subject to all the provisions thereof, including (but not limited to) provisions such as a radius, location, use or exclusivity provision, and will not breach any such provisions in any other lease, financing agreement, or master agreement relating to such shopping center.... 11 U.S.C. § 365(b)(3)(C). Mass Mutual also argued that the proposed assignment violated § 365(b)(3)(D) because the Newberry Lease allegedly mandates that the premises be operated as a retail store or not at all. Under § 365(b)(3)(D), debtor must demonstrate “that" }, { "docid": "1135446", "title": "", "text": "that default. Without any supporting case citation, it contends that there can be no assumption under § 365 until all lease defaults are cured. I disagree. Unless the court approves of a different arrangement, a lease is assumed once court approval is obtained. The statutory language of § 365(b)(1)(A) allows a debtor in possession time to cure a prepetition default, so long as the cure is prompt and there is “adequate assurance” of payment. Providing “adequate assurance” of a prompt cure “is a substitute for the taking of the action.’’ 2 Collier on Bankruptcy, 11365.04, at 365-37 (15th ed. 1987) (emphasis added). If a lessor, or any other party in interest, is dissatisfied with the proposed cure, it is free to object to the debtor’s motion. Again, here the parties agreed to provide a cure of the prepetition lease default over a four month period. Since M & M and the committee were satisfied with the debtor’s offer, both in terms of timing and in terms of adequate assurance, it was within the discretion of this court to ratify the agreement upon notice and hearing. Thus, the lease was assumed when the order was entered granting the motion, and Mushroom’s failure to cure simply represents a post-assumption breach of the lease. Alternativley, even if the lease were not assumed, for the reasons mentioned above I would conclude that the parties entered into a valid postpetition lease pursuant to 11 U.S.C. § 363(b). Thus, Mushroom’s failure to cure would represent, simply, the postpetition breach of a postpetition agreement. This, in turn, would give rise to an administrative claim. C. The committee’s final argument is one of waiver. It contends that, even if the lease were assumable and were assumed, M & M waived its right to make an admin istrative claim for a sum greater than that set forth in 114(A) of the consent order of November 5,1985. I agree that, as a product of the assumption negotiations between a lessor, lessee and other parties in interest, the lessor can waive its right to seek an administrative expense. Indeed, here, in" }, { "docid": "1135444", "title": "", "text": "M, either within or without the ordinary course of business, pursuant to 11 U.S.C. § 363(b), (c). The requisite notice and hearing was provided and court approval was obtained. Compare In re Dant and Russell, Inc., 67 B.R. 360, 362-363 (D.Or.1986) (postpetition leases were invalid as no notice and opportunity for a hearing provided) with Richmond Leasing Co. v. Capital Bank N.A. The limitations upon lease assumptions, embodied in § 365, do not apply to postpetition leases entered into by virtue of § 363. Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d at 1311: Moreover, to the extent that the amended lease represents a true renegotiation of the obligations ... it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the code suggests that the debtor may not modify its contracts when all parties to the contracts consent. Accord, In re Schuld Manufacturing Co., 43 B.R. 535 (Bankr.W.D.Wis.1984). In addition, a breach of a valid postpetition lease is treated as an administrative expense. In re Chugiak Boat Works, 18 B.R. 292, 296-297 (Bankr.D.Alaska 1982). Therefore, I reject the committee’s implicit argument that this court’s order expressly granting assumption can now be challenged. Even if it could, it would not alter the result that Mushroom and M & M were parties to a valid lease agreement entered into postpetition. B. Section 365(a) permits a debtor in possession to assume an unexpired lease subject to court approval. Here that approval was granted upon due notice to parties in interest. Section 365(b)(1)(A) obligates the debtor in possession, “at the time of assumption”, to cure or provide “adequate assurance” of a “prompt cure” of any prepetition defaults. In this matter, the parties agreed to a payment schedule designed to cure the prepetition defaults. Despite the statutory language, the committee argues that Mushroom never assumed the M & M lease because it failed to cure the prepetition lease default even though it retained possession of the leased premises and made a partial payment toward" }, { "docid": "1135434", "title": "", "text": "debtor assumed the M & M lease upon entry of this court’s order dated November 5, 1985. 2. The assumption of the lease transformed the M & M prepetition claim into an administrative expense claim. 3. M & M did not waive its administrative claim for the prepetition liability by consenting to the order of November 5, 1985. II. As set forth in the creditors’ committee post-trial memorandum, at 2-3, the committee offers three reasons for disputing M & M’s administrative claim. It argues that: there was no lease assumption because the lease expired prior to the order of November 5, 1985 and thus could not be assumed; the debtor’s failure to cure the defaults as required by 11 U.S.C. § 365(b)(1) prevented the lease from being assumed; and M & M limited its administrative expense claim by its consent to the November 5, 1985 order. In order to explain why I disagree with each of the committee’s arguments, I must place them in the context of 11 U.S.C. § 365. Section 365 is one of the more complicated code provisions and has generated considerable litigation and much discussion and analysis. Essentially, this section recognizes that unexpired leases may represent a valuable asset of the estate. Building upon its ancestor, section 70(b) of the Bankruptcy Act of 1938, former 11 U.S.C. § 110(b) (repealed 1978), and decisional interpretations of this provision, section 365 sets forth a federal substantive right of a debtor in possession to assume an unexpired lease when it reasonably believes such assumption will benefit the estate and its ability to reorganize, or to reject the lease when rejection is in its best interests. See generally Ehrlich, The Assumption and Rejection of Unexpired Real Property Leases Under the Bankruptcy Code—A New Look, 32 Buffalo L.Rev. 1 (1983) (“Ehrlich”). The standard for reaching this decision is the “business judgment” of the debtor in possession. Group of Institutional Investors v. Chicago, Milwaukee St. Paul & Pacific Railroad, 318 U.S. 523, 63 S.Ct. 727, 87 L.Ed. 959 (1943); Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1309 (5th Cir.1985):" }, { "docid": "1135450", "title": "", "text": "the consent of the committee, granting the debtor’s motion to assume the M & M lease. That order has the legal effect of granting M & M an administrative expense claim. Thus, the lessor’s motion will be granted. An appropriate order will be entered. . The motion also sought relief from the automatic stay as well as contempt. Relief from the stay was granted by agreement of all parties and so no longer is an issue. Contempt is inappropriate since the estate has the capacity and willingness to comply with this determination of M & M’s rights as an administrative creditor, and the failure to pay was due to the debtor’s interpretation of § 365, rather than to its obduracy. . As this dispute involves competing creditors seeking funds from the liquidation of the debt- or’s estate, the debtor accurately perceives itself as a bystander to this litigation — albeit an interested one. See 11 U.S.C. § 1129(a)(9). . Since this matter concerns an unexpired lease, references in this opinion to section 365 will be limited to such leases although § 365 also applies to executory contracts. . While section 365 speaks in terms of the trustee’s powers, a debtor in possession has the rights and powers of the trustee. 11 U.S.C. § 1107. Accord, e.g. In re Marple Publishing Co., 20 B.R. 933, 935 (Bankr.E.D.Pa.1982). . To the extent that either Matter of Robinson Truck Line, Inc., 47 B.R. 631 (Bankr.N.D.Miss.1985) or Matter of Schatz Federal Bearings Co., Inc., 5 B.R. 549 (Bankr.S.D.N.Y.1980) may be read to apply a different result for prepetition defaults of assumed labor contracts, I would respectfully disagree. Except as modified by 11 U.S.C. § 1113, unexpired labor contracts are treated as executory contracts governed by § 365. N.L.R.B. v. Bildisco and Bildisco. . Thus, if the rental increase demanded by M & M were to alter the analysis from that of a lease assumption to that of postpetition lease creation, Mushroom had the power to enter into such an arrangement with M & M’s consent and it received court approval for the postpetition agreement" }, { "docid": "1135435", "title": "", "text": "of the more complicated code provisions and has generated considerable litigation and much discussion and analysis. Essentially, this section recognizes that unexpired leases may represent a valuable asset of the estate. Building upon its ancestor, section 70(b) of the Bankruptcy Act of 1938, former 11 U.S.C. § 110(b) (repealed 1978), and decisional interpretations of this provision, section 365 sets forth a federal substantive right of a debtor in possession to assume an unexpired lease when it reasonably believes such assumption will benefit the estate and its ability to reorganize, or to reject the lease when rejection is in its best interests. See generally Ehrlich, The Assumption and Rejection of Unexpired Real Property Leases Under the Bankruptcy Code—A New Look, 32 Buffalo L.Rev. 1 (1983) (“Ehrlich”). The standard for reaching this decision is the “business judgment” of the debtor in possession. Group of Institutional Investors v. Chicago, Milwaukee St. Paul & Pacific Railroad, 318 U.S. 523, 63 S.Ct. 727, 87 L.Ed. 959 (1943); Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1309 (5th Cir.1985): As long as assumption of a lease appears to enhance a debtor’s estate, court approval of a debtor-in-possession’s decision to assume the lease should only be withheld' if the debtor's judgment is clearly erroneous, too speculative, or contrary to the provisions of the Bankruptcy Code. (quoting Allied Technology, Inc. v. R.B. Bronemann & Sons, 25 B.R. 484, 485 (Bankr.S.D.Ohio 1982)). In addition to establishing the federal substantive right to assume or reject, section 365 establishes procedures for exercising this decision, requires court approval for assumption, see e.g., In re Walat Farms, Inc., 69 B.R. 529, 533 (Bankr.E.D.Mich.1987); In re Multech Corp., 47 B.R. 747 (Bankr.D.Iowa 1985); 2 Collier on Bankruptcy ¶ 365.03, at 365-15 (15th ed. 1987), sets forth time periods within which a decision must be made, and also declares various substantive rights held by the non-debtor parties to these leases, all of which are designed, (at least in part), to balance the competing interests held by non-debtors and debtors. If a lease is rejected, as set forth in § 365(a), all prepetition defaults" }, { "docid": "21582765", "title": "", "text": "did rely to its detriment, then they are estopped from later raising the de fense. See In re J.F. Hink & Son, 815 F.2d at 1318; Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1096 (9th Cir.1985). The bankruptcy court found that the lessors’ conduct did not operate to waive their rights under section 365(c)(2) or to estop them from raising the argument. It found that while the lessors did discuss terms upon which they would be willing to sell the property to Easebe, they had no reason to believe that Easebe thought that the option to purchase was assumed. These findings are not clearly erroneous. See In re Woodson Co., 813 F.2d at 270. The record indicates that the lessors were not notified that Easebe wanted to assume both the lease and the option in the same court proceedings and that the option was not discussed during the hearing on Easebe’s application to assume the lease. Moreover, an option to purchase real property is different from a lease and raises different concerns. Had the owners been aware that Easebe was attempting to assume both, they presumably would have requested appropriate assurances in addition to the insurance concerns they raised. Accordingly, the lessors did not waive their right to assert section 365(c)(2) and were not estopped from doing so. Our decision in In re J.F. Hink & Son, 815 F.2d 1314 (9th Cir.1987), does not dictate a contrary result. In re J.F. Hink & Son held that a party to whom the debtor assigned its interest in an unexpired lease was estopped from asserting 11 U.S.C. § 365(f)(3) to deny that he had accepted all of the lease terms. In that case, however, the estopped party participated directly in proceedings to assign the lease and testified that he knew and understood all of the terms of the lease. His behavior unequivocally induced reliance by the other parties as well as the court. The lessors here did not engage in behavior even remotely similar to that featured in J.F. Hink & Son. The lessors request that Easebe’s attorney be sanctioned and instructed" }, { "docid": "3898060", "title": "", "text": "to pay CIT $400.00 per hour for every flight hour over 20 hours per month the plane is flown. Airborne proposes to substantially reduce this payment. However, as of the date of hearing no agreement between Airborne and CIT had been reached on this modification. Rather, a representative from CIT testified that an agreement is unlikely. He also expressed concern about the financial condition of Airborne and indicated that CIT would not consent to terms being offered by Airborne. In fact, the CIT repre sentative testified that CIT wishes to proceed with its own motion for relief from the automatic stay so it can foreclose on the plane. Discussion and Conclusions of Law Debtor seeks to assume an unexpired lease with ATA pursuant to 11 U.S.C. § 365(b). Alternatively, debtor seeks to assume and assign the unexpired lease with ATA to Airborne, Inc., pursuant to 11 U.S.C. § 365(f). The court will address each proposal separately. 11 U.S.C. § 365(b). Section 365 contains a number of restrictions on the power of a debtor in possession to assume an unexpired lease. Section 365(b) provides that if defaults have occurred in the lease, the debtor in possession must cure the defaults or provide adequate assurance of prompt cure and must provide adequate assurance of future performance under the lease. See 11 U.S.C. § 365(b)(l)(A)-(C). When a debt- or in possession assumes an unexpired lease, it takes the lease cum onere, that is, subject to existing burdens. See Dept. of Air Force v. Carolina Parachute Corp., 907 F.2d 1469, 1472 (4th Cir.1990); Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1311 (5th Cir.1985); In re Claris Smith Building, Inc., 112 B.R. 768, 770 (Bankr.E.D.Va.1990); Tidewater Memorial Hospital, Inc. v. Bowen (In re Tidewater Memorial Hospital), 106 B.R. 876, 877 (Bankr.E.D.Va.1989). In other words, a debtor may not assume the favorable aspects of an unexpired lease and reject the unfavorable aspects of the same lease. See Carolina Parachute Corp., 907 F.2d at 1472. Upon assumption of a lease, the obligation becomes one of the estate, and the debtor is required to perform." }, { "docid": "12462248", "title": "", "text": "may be properly regarded as a trustee for section 549(a) purposes. See Johnston v. First Street Companies, Inc. (In re Waterfront Companies, Inc.), 56 B.R. 31, 34-35 (Bankr.D.Minn.1985) Moreover, under 11 U.S.C. § 1108 (1982), the trustee, or as here, the debtor-in-posses sion, “may operate the debtor’s business” provided the court does not order otherwise. Id. The debtor-in-possession is limited by section 363(b), which directs that “the trustee [or debtor-in-possession], after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b) (1982 & Supp. IV 1987) (emphasis added) (footnote added). And, If the business of the debtor is authorized to be operated under section 721, 1108,1304,1203, or 1204, of this title and unless the court orders otherwise, the trustee [or debtor-in-possession] may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing. 11 U.S.C. § 363(c)(1) (1982 & Supp. IV 1987) (emphasis added). Reading subsections (b) and (c)(1) together indicates that the general rule is that unauthorized lease transactions are permissible only to the extent that they are executed in the debt- or’s “ordinary course of business.” See Waterfront, 56 B.R. at 34. Thus, the dis-positive question becomes, for our purposes, whether the postpetition leases were executed in the ordinary course of debtor-in-possession’s business. In analyzing this question, we note that neither the Bankruptcy Code nor the legislative history of section 363(c) offers guidance as to what constitutes “ordinary course of business;” however, courts interpreting the term have established guidelines which are helpful and persuasive here. Id. at 35; In re Johns-Manville Corp., 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986), rev’d on other grounds, 801 F.2d 60 (2d Cir.1986). Two tests emerge to aid in assessing whether the postpetition leases were executed in the ordinary course of business: (1) vertical dimension or creditor’s expectation test and (2) horizontal dimension test. A. Horizontal Dimension Test The" }, { "docid": "18765046", "title": "", "text": "contract if (1) the debtor can provide adequate assurance that it, too, will continue to perform, and if (2) the debtor can cure any defaults in its past performance. The provision provides a means whereby a debtor can force others to continue to do business with it when the bankruptcy filing might otherwise make them reluctant to do so. The section thus serves the purpose of making the debtor’s rehabilitation more likely, In this context, it becomes clear that in the typical case under § 365, if anyone objects to the debtor’s assumption of the contract it will be the other party to the executory contract, not the debtor’s creditors who are strangers to the transaction. Thus, the often-repeated statement that the debtor must accept the contract as a whole means only that the debtor cannot choose to accept the benefits of the contract and reject its burdens to the detriment of the other party to the agreement. See In re Holland Enterprises, Inc., 25 B.R. 301 (Bankr.E.D.N.C.1982); In re LHD Realty Corp., 20 B.R. 717 (Bankr.S.D.Ind.1982). Similarly, the- other party cannot hold out for concessions from the debtor beyond those required to provide adequate assurance. See In re Lafayette Radio Electronics Corp., 9 B.R. 993, 998 (E.D.N.Y.1981). We conclude that RLC’s recognizing an event of default in RTC’s failure to perform the new covenants, which were included in the amended lease in order to assure GECC that RTC would perform its guarantee, is part of RLC’s offer of adequate assurance of future performance to GECC. See In re Kennesaw Dairy Queen Brazier, 28 B.R. 535, 536 (N.D.Ga.1983) (stating, “The fact that debtors may cure defaults and reinstate contracts or leases also is perhaps the clearest example of the modification of an executory contract or unexpired lease.”). Moreover, to the extent that the amended lease represents a true renegotiation of the obligations of RLC, RTC and GECC, it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the Code suggests" } ]

[ { "docid": "16609206", "title": "", "text": "and investigation in turn. A municipality may not be held liable under § 1983 for the conduct of its lower-echelon employees solely on the basis of respondeat superior. Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Sorlucco v. New York City Police Dep% 971 F.2d 864, 870 (2d Cir.1992). In order to impose § 1983 liability upon a municipality, a plaintiff must demonstrate that a constitutional harm resulted from a municipal policy or custom. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; Sorlucco, 971 F.2d at 870. A single incident alleged in a complaint, especially if it involved only actors below the policy-making level, generally does not suffice to show a municipal policy or custom. Ricciuti v. N.Y.C. Transit Auth, 941 F.2d 119, 123 (2d Cir.1991). However, where the discriminatory practices of municipal officials are so persistent and widespread as to imply the constructive acquiescence of senior policy-making officials, a custom or policy may sometimes be inferred. Sorlucco, 971 F.2d at 870-71. For example, a custom or policy of deliberate indifference to the constitutional rights of those within its jurisdiction may be inferred from evidence that the municipality had notice of widespread charges of police misconduct yet repeatedly failed to make any meaningful investigation. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995); Ricciuti, 941 F.2d at 123; Fiacco v. City of Rensselaer, 783 F.2d 319, 328-31 (2d Cir.1986). Alternatively, where the municipality, in the face of an objectively obvious need for more or better training or supervision, fails to take action, a custom or policy may be inferred. See Board of the County Comm’rs v. Brown, — U.S.-,-, 117 S.Ct. 1382, 1390, 137 L.Ed.2d 626 (1997); City of Canton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 1204-07, 103 L.Ed.2d 412 (1989); Ricciuti, 941 F.2d at 123. If a custom or policy of deliberate indifference is established, the municipality may be held liable if its inaction was the “moving force” behind the injury alleged. Brown, — U.S. at-, 117 S.Ct. at 1388. With" } ]

[ { "docid": "11347848", "title": "", "text": "demonstration of policy condoning unconstitutional action by city employees where only evidence presented was plaintiff’s own arrest and failure to discipline the arresting officer for prior use of excessive force). Appellees criticize the manner in which citizen complaints are filed by the Utica police department, characterizing this filing system as evidence of a policy condoning police misconduct. However, we are neither directed to, nor aware of, any authority that imposes upon a police department the duty to maintain a cross-indexed filing system under which all complaints received, no matter how baseless, must be placed in that officer’s personnel file. At oral argument, counsel for appellees seized upon the filing system to excuse appellees’ failure to present even one prior incident of police misconduct — evidence viewed as essential in Fiacco. Counsel conceded that he had failed to review even the files of the three individual officers involved to ascertain whether any of them had been cited for similar incidents in the past. We find this failure to pursue even the most elementary of discovery procedures to be inexcusable, and we are loath to affirm a finding of a policy of indifference to police misconduct when not even a single incident of other misconduct was presented. Neither may much significance attach to Commissioner Bruni’s testimony as to the number of resisting arrest charges filed by Utica police officers, in light of appellees’ failure to adduce evidence of the circumstances surrounding those arrests, or even to present corresponding figures from other police departments to determine whether Utica’s were excessively high. In sum, the only relevant evidence presented by appellees was the manner in which they themselves were arrested. We previously have made clear that, “absent more evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy [may] not ordinarily be inferred from a single incident of illegality.” Turpin, 619 F.2d at 202. See also Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). In Oklahoma City v. Tuttle, 471 U.S. 808, 105" }, { "docid": "14587523", "title": "", "text": "of persons like Plaintiff who come into contact with the police; and (3) the inadequate training actually caused the constitutional injury. See City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.1989). That happens when the municipality makes a deliberate, conscious choice, and the resulting deficient training has a direct, causal link to the deprivation of federal rights. See City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. Similarly, a deliberate policy of failing to investigate (and therefore tolerating) excessive force also requires a deliberate choice that has a direct, causal link to the deprivation of rights. See Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir.1999) (finding no Monell liability because there was no excessive force); Henry v. County of Shasta, 132 F.3d 512, 520 (9th Cir.1997) (failure to fire or reprimand officers shows policy of deliberate indifference to their misconduct). Plaintiff alleged that Fremont police officers engaged in a pattern of excessive force and false arrests, the City and Police Chief had notice of this practice “on more than one occasion,” and their deliberate indifference to the practice (shown by their failure to address the pattern by training or other supervisory response) caused the excessive force here. Complaint, ECF No. 75 at 4-5, ¶¶ 15-16. Defendants respond that the pleadings, discovery, and declarations show no evidence of any policy, practice, or indifference, let alone a causal link to the force used here. At oral argument, the Court asked Plaintiff whether he had any evidence — other than evidence about what happened to him — about similar police conduct. Plaintiff responded that he did not. A sporadic incident cannot establish Monell liability. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). Moreover, there is no evidence of a policy or practice that caused the conduct here. See Monell, 436 U.S. at 694-95, 98 S.Ct. 2018. The Court grants summary judgment for Defendants as to claim two. 2. State law claims Similarly, because Plaintiffs evidence involves only the November 5" }, { "docid": "17203602", "title": "", "text": "been filed over his 20-plus years as a police officer. A municipality is not vicariously liable under § 1983 for the conduct of its officers. Estate of Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir.2008). For liability to attach under Monell, in addition to establishing a constitutional deprivation, the plaintiff must show that: 1) the municipality had a custom, policy or practice of failing to investigate, discipline, supervise or train its officers, which 2) demonstrated a “deliberate indifference” to the rights of those citizens with whom its officers came into contact and 3) directly caused the alleged constitutional violation. Evidence of citizen complaints against an officer, without more, does not suffice to show a municipal custom of permitting or encouraging excessive force. Trinidad v. City of Boston, No. 07-11679-DPW, 2010 WL 2817186, at *11 (D.Mass. July 16, 2010). A plaintiff must, at the very least, produce evidence that serious prior incidents similar to the alleged constitutional violation in question put the municipality on inquiry notice of an officer’s danger to the public and that the police department’s policy of ignoring or covering up those incidents was “the moving force” behind the alleged violation. See Young v. City of Providence, 404 F.3d 4, 25-28 (1st Cir.2005). Eason has failed to meet his burden. None of the complaints against Officer Wright has anything to do with the kind of constitutional violations alleged in this case. Four complaints relate to altercations with Officer Wright’s family members. Two allege that he acted disrespectfully toward citizens. Only one of the seven complaints alleges excessive force and the circumstances of that incident indicate that Officer Wright “grabbed a girl by the wrist” during the course of ejecting her from the Fleet Center during a concert. That allegation of excessive force, which was ruled factually unfounded by the Internal Affairs Department (“LAD”), bears no similarity to the alleged violation in this case and, therefore, cannot support Eason’s Monell claim. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 583 n. 5 (1st Cir.1994) (explaining that citizen complaints with little similarity to the alleged violation cannot be used to" }, { "docid": "14587524", "title": "", "text": "false arrests, the City and Police Chief had notice of this practice “on more than one occasion,” and their deliberate indifference to the practice (shown by their failure to address the pattern by training or other supervisory response) caused the excessive force here. Complaint, ECF No. 75 at 4-5, ¶¶ 15-16. Defendants respond that the pleadings, discovery, and declarations show no evidence of any policy, practice, or indifference, let alone a causal link to the force used here. At oral argument, the Court asked Plaintiff whether he had any evidence — other than evidence about what happened to him — about similar police conduct. Plaintiff responded that he did not. A sporadic incident cannot establish Monell liability. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). Moreover, there is no evidence of a policy or practice that caused the conduct here. See Monell, 436 U.S. at 694-95, 98 S.Ct. 2018. The Court grants summary judgment for Defendants as to claim two. 2. State law claims Similarly, because Plaintiffs evidence involves only the November 5 incident, and not any failure to train or indifference to a pattern of police misconduct, the Court grants summary judgment to Defendants on claim nine. As to claim ten, the Court also grants summary judgment to the extent that claim ten is based on a failure to train and a practice and policy of ignoring excessive force. Also, there is no respondeat superi- or liability under section 1983. See Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir.1990). In claim ten, however, Plaintiff alleges respondeat superior liability generally. The City and Police Chief may have vicarious liability under state law for acts or omissions of the police officers acting within the scope of their employment. See, e.g., California Government Code § 815.2(a) (public entity is liable for the acts and omissions of an employee within the scope of employment to the same extent as the employee); Blankenhorn, 485 F.3d at 488 (section 815.2(a) allows for vicarious liability of public entity for officer’s excessive force); accord Edgerly v. City & County of" }, { "docid": "5086029", "title": "", "text": "from the participants of these incidents that illustrates that these incidents were in any way similar to the altercation between Plaintiff and Officer Popp. Without factual support, such baseless allegations that history has repeated itself cannot withstand a motion for summary judgment. See, e.g., Sarus v. Rotundo, 831 F.2d 397, 402 (2d Cir.1987) (finding a number of resisting arrest charges filed by police did not suggest policy of indifference to excessive use of force where plaintiff failed “to adduce evidence of the circumstances surrounding those arrests, or even to present corresponding figures from other police departments”); Singleton v. City of Newburgh, 1 F.Supp.2d 306, 311 (S.D.N.Y.1998) (granting summary judgment to defendant municipality on Monell .claim because three complaints of alleged excessive use of force do not demonstrate deliberate indifference to use of excessive force). Thus, as to Plaintiffs third reason for asserting municipal liability against Yorkville, Plaintiffs Motion FAILS and Yorkville’s SUCCEEDS only as to Plaintiffs third argument. 4.) Yorkville’s Contention that Plaintiffs Participation in Setting Police Policy Estops Him From Bringing a Monell Claim As noted above, Yorkville contends that Plaintiff, as a member of the City Council and as a member of the York-ville Police Department’s Advisory Committee, Plaintiff participates in setting Yorkville’s police policy. Without citing any precedent, Yorkville argues that Plaintiffs failure to protest the detrimental police policies, which he participated in setting and now alleges are inadequate, should prevent him from bringing a Monell claim. In essence, Yorkville asks this Court to graft an estoppel requirement onto Monell. Yorkville’s argument fails. Yorkville has not adequately shown that Plaintiff actually participated in setting police policies. On the other hand, the record evidence shows that Plaintiff was an outspoken. critic of Chief Anderson and his administration. Plaintiff did not have absolute power over decisions on how to train Yorkville’s police force. All evidence shows that these decisions were left to Chief Anderson. Grafting an estoppel requirement onto Monell would force every city council person to take proactive steps to see that their city’s police force is adequately trained and supervised before bringing a Monell claim. This is" }, { "docid": "22140178", "title": "", "text": "the reports included intentionally false information. If so, Blankenhorn would overcome the presumption of prosecutorial independence. See Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir.1989) (plaintiff overcame presumption where prosecutor had no information but police reports and plaintiff presented evidence, in addition to his own testimony, of false information in the reports); see also Barlow, 943 F.2d at 1137 (discussing Borunda). Moreover, Nguyen’s purposeful omission that he punched Blankenhorn is relevant to whether there was probable cause to charge him with resisting arrest. If the prosecutor knew Nguyen used excessive force, there would likely be little or no basis for charging him with resisting arrest as was done here. See People v. Olguin, 119 Cal.App.3d 39, 173 Cal.Rptr. 663, 667 (1981) (“[I]t has long been established that a police officer is not permitted to use unreasonable or excessive force in making an otherwise lawful arrest, and if the officer does use such force the arrestee may use reasonable force to protect himself in accordance with the principles of self-defense.”); People v. White, 101 Cal.App.3d 161, 161 Cal.Rptr. 541, 544 (1980) (“[I]f a defendant is charged with [resisting arrest] and the arrest is [made with excessive force], a defendant cannot be convicted of [resisting arrest].”). We therefore hold that Ross and Nguyen are not entitled to summary judgment under Smiddy. Accordingly, we reverse the district court’s grant of summary judgment for Ross and Nguyen on this cause of action. 4. Municipal Liability. Blankenhorn seeks to hold the City liable for the arresting officers’ alleged use of excessive force. The City may be held liable under section 1983 if its deliberate policy caused the constitutional violation alleged. See Monell v. Dep’t of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001). Because the policy Blankenhorn complains of is a failure to train, he must show that (1) he was deprived of a constitutional right, (2) the City had a training policy that “ ‘amounts to deliberate indifference to the [constitutional]" }, { "docid": "22259480", "title": "", "text": "the three civilian complaints relied on by plaintiff “do not raise any issue of fact as to the liability of the City of New York for any claimed deprivation of plaintiff’s constitutional rights”, because one of the claims was withdrawn, one conciliated and one was dismissed as unsubstantiated. Law v. Cullen, 613 F.Supp. 259, 262 (S.D.N.Y.1985). District Court Opinion at 7-8. The court concluded that [t]he City has submitted detailed testimony outlining the operation of the police department’s monitoring services and the methods for referring an officer for supervision or counseling.... The existence of City programs such as the Police Department’s Central Personnel Index, Early Intervention Unit and the PSU demonstrate that as a matter of law thé City has not been deliberately indifferent to the rights of its citizens. See e.g., Sarus v. Rotundo, 831 F.2d 397 [ (2d Cir.1987) ]. “In the face of the [deposition testimony] of persons with the responsibility for training and supervision of police officers as to the City’s policies and procedures for detecting and avoiding abuse or use of excessive force ...” it is the finding of the Court that plaintiff has failed to raise a material issue of fact concerning the municipal liability of the City. Law v. Cullen, 613 F.Supp. at 263. District Court Opinion at 8-9. Accordingly, Vann’s claims against the Department and the City were summarily dismissed. His subsequent motion for reconsideration was granted, but the court adhered to its decision. The court later dismissed the claims against Morrison because he had been adjudged a bankrupt and Vann’s claims against him had been discharged. A final judgment was entered, and this appeal, challenging only the dismissal of the claims against the municipal defendants, followed. II. DISCUSSION On appeal, Vann contends that the district court erred in ruling that as a matter of law the municipal defendants could not be found to have been deliberately indifferent to constitutional violations by problem police officers following their reinstatement. We agree that summary judgment was inappropriate. A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact" }, { "docid": "19685907", "title": "", "text": "the claims were pertinent to Fiacco’s contention that the City had a policy of nonsupervision of its policemen that reflected a deliberate indifference to their use of excessive force. Id. at 328 (emphasis added). The Second Circuit did not find the notices of claims standing alone sufficient to override the potential prejudice to the defendant. Rather, it was the combination of the notices and evidence of the City’s attitudes and responses to such notices that tipped the scales toward the probative. This Court gave limiting instructions both at the time the Notices of Claims were admitted and during the jury charge. However, after the admission of the Notices of Claims, the plaintiff failed to introduce any evidence concerning the efforts to evaluate these claims by the City. There was no evidence concerning the treatment of any of these claims, nor was there any evidence as to the investigations conducted by the police department. Even in Fiacco, the purpose-of such evidence was for the plaintiff to demonstrate the City’s efforts in the face of such problems. “[I]f the City’s efforts to evaluate claims were so superficial as to suggest that it’s official attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those claims.” Id. at 328. As noted above, the plaintiff offered no proof in this regard, and the mere fact that claims had been filed against the City of Rome, standing alone, does not establish a pattern, policy, or practice which was causally related to the false arrest and use of excessive force upon the plaintiff. Finally, the plaintiff relies on Chief Cic-eone’s testimony that he was unaware of any police officer being disciplined for engaging in excessive force or false arrest. In the first place, Chief Cieeone had only been in that position for one year, and the disciplining of police officers was not his responsibility either before or during the time of the incident with the plaintiff. In addition, because the plaintiff failed to explore the details concerning the twenty-five Notices of Claims filed" }, { "docid": "11347839", "title": "", "text": "Saruses’ arrests, stated that he pursued any complaints received by his office. Counsel for appellees also elicited testimony from Bruni as to the number of resisting arrest charges filed by Utica police officers. Proceeding on the unproved premise that resisting arrest charges frequently are filed as a means of concealing the use of excessive force in apprehending suspects, these figures apparently were adduced in an attempt to establish a pattern of police brutality. However, appellees offered no evidence of corresponding statistics from other police departments to establish a basis for comparison. After denying the city defendants’ motions for directed verdicts, Judge McCurn submitted to the jury special verdict forms, which read, in pertinent part: (4) Do you find for [plaintiff] against the City of Utica on the FEDERAL CIVIL RIGHTS CLAIM BASED ON FAILURE TO PROVIDE PROPER TRAINING FOR POLICE OFFICERS AND PROPER REPORTING OF CITIZENS’ COMPLAINTS CONCERNING POLICE BRUTALITY OR MISCONDUCT? If your answer above is YES, do you find that Police Chief Benny Rotundo is the person responsible for setting and implementing the police department policy such that he should be held liable along with the City of Utica? On November 25, 1986, the jury returned verdicts against the officers for false arrest and imprisonment, malicious prosecution, and the use of excessive force. Having responded affirmatively to both questions set forth above, the jury also returned verdicts against the City and Chief Rotundo. The judgments reflected the jury’s awards to each appellee of $25,-000. 00 in compensatory damages against all defendants and $8,000.00 in punitive damages. The punitive awards each included $5,000.00 in damages against Chief Rotundo. Judge McCurn denied the city defendants’ motions for judgments n.o.v. Only the City of Utica and Chief Rotundo have appealed. Contending that appellees failed to establish a policy for which they may be held liable, they attack as erroneous Judge McCurn’s denial of their motions for directed verdicts and for judgments n.o.v. Finding merit in these claims, we now reverse. II. DISCUSSION Dispositions of motions for directed verdicts, see Fed.R.Civ.P. 50(a), and motions for judgments n.o.v., see Fed.R.Civ.P. 50(b), are reviewed" }, { "docid": "16830737", "title": "", "text": "and lawful proceedings investigating police misconduct. (Am.Cplt. at p. 7; see also, McAllister 12/14/98 Aff. ¶ 1; McAllister 1/6/99 Aff. ¶¶ 3, 5,16.) McAllister’s claims that the City and Commissioner Bratton are liable on a respondeat superior basis for the acts of the district attorney and police officers are clearly not cognizable under Monell. Further, McAllister has failed to present evidence of any custom or policy concerning police misconduct, excessive force, police cover ups, etc., much less that he suffered deprivation of a constitutional right as a result. Conclusory allegations of a municipality’s pattern or policy of unconstitutional behavior are insufficient to establish a Monell claim, absent evidence to support such an allegation. See, e.g., Young v. County of Fulton, 160 F.3d 899, 903-04 (2d Cir.1998) (affirming dismissal of plaintiffs Monell claim because “her allegations failed to establish that she suffered any deprivation of her rights by reason of an official policy, custom, or practice” of the municipal defendants); Oparaji v. City of New York, 152 F.3d 920 (table), No. 97-7517, 1998 WL 432988 at *1 (2d Cir. April 21, 1998) (“[I]t is clear that the district court properly dismissed [plaintiffs] § 1983 claims. [Plaintiff] does not provide any facts in support of his conclusory allegation of the City’s failure to properly train and supervise police officers amounts to a custom or policy, or that this custom or policy caused [plaintiffs] injuries.”); Dwares v. City of New York, 985 F.2d at 100 (“The mere assertion ... that a municipality has ... a custom or policy [that violates plaintiffs constitutional rights] is insufficient in the absences of allegations of fact tending to support, at least circumstantially, such an inference.... Similarly, the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or, policy caused the plaintiffs injury.”); Smith v. Montefiore Med. Ctr., 22 F.Supp.2d at 283 (summary judgment for defendants on Monell claim because “bare allegations of ... a policy or custom, without any supporting evidence, do not constitute ... proof’); Brodeur v. City of New York, 1998 WL 557599 at" }, { "docid": "16211044", "title": "", "text": "the proper use of force. Plaintiffs again rely solely on General Order 404.1 in support of their claim of a policy or custom of excessive force. This order does not mention the degree of force that may permissibly be used in making an arrest; plaintiffs’ reb-anee thereupon is therefore insufficient to show the municipality’s liability. Plaintiffs have offered no evidence that the city had a policy or custom of using excessive force in making arrests. Plaintiffs’ bare assertion that the municipal entity had a policy or custom of using excessive force fails to establish municipal liability. Nor do plaintiffs offer any evidence that the city failed to train its officers as to the use of force. Their bare assertion that the city failed to provide training does not establish that the entity failed to train, and acted with deliberate indifference in so doing. Plaintiffs have failed to show a pattern of excessive force violations, and the mere fact that plaintiff has alleged to have suffered constitutional injury does not establish municipal liability. We grant summary judgment on plaintiffs’ Section 1983 claim in favor of the city of Allentown insofar as the claim alleges that DeBellis’ constitutional rights were violated when the officers used excessive force in arresting her. 6. Supervisory Liability of Chief Held and Mayor Heydt Plaintiffs have also sued Police Chief Held and Allentown Mayor Heydt under Section 1983. “Supervisory liability [under Section 1983] cannot be based solely upon the doctrine of respondeat superi- or, but there must be affirmative conduct by the supervisor that played a role in the [wrongful conduct.]” Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990) (citing Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence ... must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Here, plaintiffs have not alleged that either the Police Chief or the Mayor personally directed the officers to apprehend DeBellis" }, { "docid": "5086028", "title": "", "text": "F.2d 762, 768 (5th Cir.1984) Plaintiff asserts that Yorkville has a custom of tolerating police retaliation against citizens who criticize their actions. In support of this contention, Plaintiff cites several examples of this type of conduct. In an incident involving Mssrs. Wick and Renforth, a passerby allegedly happened upon an officer using excessive force against a suspect. When the passerby tried to intervene, the officer allegedly threatened to arrest him if they did not leave. Mssrs. Wick and Renforth,were arrested and later filed a civil suit against the city. It was settled out of court. Also, Kevin Kuri, Plaintiffs grandson, was allegedly arrested for making critical comments about the police. He later sued Yorkville and received an out-of-court settlement. Plaintiffs assertions, however, do not meet the standard required to establish that Yorkville had a policy of condoning retaliatory acts toward those who speak out against the police. The two incidents that the Plaintiff cite cannot provide factual support for Plaintiffs contentions in this case because they settled out of court. Moreover, Plaintiff offers no testimony from the participants of these incidents that illustrates that these incidents were in any way similar to the altercation between Plaintiff and Officer Popp. Without factual support, such baseless allegations that history has repeated itself cannot withstand a motion for summary judgment. See, e.g., Sarus v. Rotundo, 831 F.2d 397, 402 (2d Cir.1987) (finding a number of resisting arrest charges filed by police did not suggest policy of indifference to excessive use of force where plaintiff failed “to adduce evidence of the circumstances surrounding those arrests, or even to present corresponding figures from other police departments”); Singleton v. City of Newburgh, 1 F.Supp.2d 306, 311 (S.D.N.Y.1998) (granting summary judgment to defendant municipality on Monell .claim because three complaints of alleged excessive use of force do not demonstrate deliberate indifference to use of excessive force). Thus, as to Plaintiffs third reason for asserting municipal liability against Yorkville, Plaintiffs Motion FAILS and Yorkville’s SUCCEEDS only as to Plaintiffs third argument. 4.) Yorkville’s Contention that Plaintiffs Participation in Setting Police Policy Estops Him From Bringing a Monell Claim" }, { "docid": "17203601", "title": "", "text": "as the prerequisite threats, intimidation or coercion” under the MCRA). Finding none here, Eason’s MCRA claim fails as a matter of law and, therefore, all of the defendants are entitled to summary judgment on Count VIII. 9. Count X — Monell violation Count X alleges that Commissioner Davis and the City of Boston 1) maintained a policy and custom of “failing to train, supervise, investigate, and discipline police officers properly and reasonably” which 2) evinced “deliberate indifference” and 3) directly caused the deprivation of Eason’s civil rights. Eason elaborates on his Monell claim in his opposition brief, alleging that the City of Boston’s “systematic practice of ignoring officers’ misconduct” and “whitewashing citizen complaints” sent a message to Officers Alexis, Conley and Sullivan that they could act with impunity. Eason concedes that none of the officers who allegedly laid hands on him during the arrest had any excessive force complaints on their records. He bases his claim entirely on the City of Boston’s alleged failure to discipline adequately Officer Wright, against whom seven citizen complaints have been filed over his 20-plus years as a police officer. A municipality is not vicariously liable under § 1983 for the conduct of its officers. Estate of Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir.2008). For liability to attach under Monell, in addition to establishing a constitutional deprivation, the plaintiff must show that: 1) the municipality had a custom, policy or practice of failing to investigate, discipline, supervise or train its officers, which 2) demonstrated a “deliberate indifference” to the rights of those citizens with whom its officers came into contact and 3) directly caused the alleged constitutional violation. Evidence of citizen complaints against an officer, without more, does not suffice to show a municipal custom of permitting or encouraging excessive force. Trinidad v. City of Boston, No. 07-11679-DPW, 2010 WL 2817186, at *11 (D.Mass. July 16, 2010). A plaintiff must, at the very least, produce evidence that serious prior incidents similar to the alleged constitutional violation in question put the municipality on inquiry notice of an officer’s danger to the public and that" }, { "docid": "19685908", "title": "", "text": "“[I]f the City’s efforts to evaluate claims were so superficial as to suggest that it’s official attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those claims.” Id. at 328. As noted above, the plaintiff offered no proof in this regard, and the mere fact that claims had been filed against the City of Rome, standing alone, does not establish a pattern, policy, or practice which was causally related to the false arrest and use of excessive force upon the plaintiff. Finally, the plaintiff relies on Chief Cic-eone’s testimony that he was unaware of any police officer being disciplined for engaging in excessive force or false arrest. In the first place, Chief Cieeone had only been in that position for one year, and the disciplining of police officers was not his responsibility either before or during the time of the incident with the plaintiff. In addition, because the plaintiff failed to explore the details concerning the twenty-five Notices of Claims filed against the City, the jury was presented with no evidence of any acts by Rome police officers which reasonably could or should have required discipline. Again, the mere fact that Notices of Claims were filed does not constitute evidence of violation of Constitutional rights. See Skorupski, 652 F.Supp. at 694; supra note 6. There was no evidence in Chief Ciccone’s testimony from which one could draw any reasonable inference that there existed in the City of Rome a pattern, policy, or practice of failing to train or supervise which was causally related to the acts committed by Early against the plaintiff on April 29, 1991. In summary, as a matter of law, the plaintiff has failed to prove that the City of Rome, either by pattern, policy, or practice, failed to train or supervise, and therefore deprived the plaintiff of any constitutional right. There was no evidence showing a causal connection between what happened to the plaintiff and any acts on the part of the municipality. Therefore, the federal claims against the City of Rome" }, { "docid": "22140179", "title": "", "text": "161, 161 Cal.Rptr. 541, 544 (1980) (“[I]f a defendant is charged with [resisting arrest] and the arrest is [made with excessive force], a defendant cannot be convicted of [resisting arrest].”). We therefore hold that Ross and Nguyen are not entitled to summary judgment under Smiddy. Accordingly, we reverse the district court’s grant of summary judgment for Ross and Nguyen on this cause of action. 4. Municipal Liability. Blankenhorn seeks to hold the City liable for the arresting officers’ alleged use of excessive force. The City may be held liable under section 1983 if its deliberate policy caused the constitutional violation alleged. See Monell v. Dep’t of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001). Because the policy Blankenhorn complains of is a failure to train, he must show that (1) he was deprived of a constitutional right, (2) the City had a training policy that “ ‘amounts to deliberate indifference to the [constitutional] rights of the persons’ with whom [its police officers] are likely to come into contact”; and (3) his constitutional injury would have been avoided had the City properly trained those officers. See Lee, 250 F.3d at 681 (quoting City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The evidence Blankenhorn proffered to establish the City’s policy of failing to train its officers in the use of excessive force focused exclusively on Officer Nguyen. This included performance evaluations and internal affairs interviews regarding Blankenhorn’s arrest as well as prior complaints against Nguyen for excessive force. However, evidence of the failure to train a single officer is insufficient to establish a municipality’s deliberate policy. In Alexander we held that an executor seeking to hold a municipality liable for the testator’s shooting death during a police raid of his home could not establish as a matter of law, solely on evidence of the municipality’s failure to train only one officer, that the municipality had made the “deliberate” or “conscious” choice required" }, { "docid": "10126990", "title": "", "text": "to span 2002 to 2014, or any factual determinations made in them, save that most settled and two are pending. See id. 92(i), 93(f). These allegations fall far short of pleading either of the first two means of establishing Monell liability: that (1) a formal policy or (2) decisions made by final municipal decisionmakers led Calderon’s apartment to be unlawfully searched. The TAC instead appears to base its Monell claim on a theory of de facto custom by the City, see id. ¶ 90, or of a failure by the City to train, supervise, or discipline. See id. ¶¶ 88-89. The Court considers these theories in turn. i. Custom As to the custom theory, “an act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Bd. of Cty. Comm’rs of Bryan Cty. v. Braum, 520 U.S. 397, 404, 117 .S.Ct. 1382, 137 L.Ed.2d 626 (1997). But the lawsuits cited by Calderon, without more, do not plausibly suggest a “practice ... so widespread as to have the force of law.” Id. Judge Karas’s recent decision in Tieman v. City of Newburgh, No. 13 Civ. 4178(KMK), 2015 WL 1379652 (S.D.N.Y. Mar. 26, 2015), is instructive. In Tieman, the Complaint alleged that the City of Newburgh “‘has a policy or practice of using excessive force when effectuating arrests, and fails to train and/or discipline its employees to prevent violations of arres-tee’s [sic] constitutional rights.’” Id. at *14. It cited “an extensive history of lawsuits and other complaints,” alleging that at least nine excessive-force suits were filed against the city in the preceding five years—including five that involved, as the plaintiffs case did, allegations of unnecessary dog bites. Id. at *15.' It further alleged that the City was on notice of the excessive force problem because of comments from citizens at public forums and because of a consulting group’s report on the police department’s practices. Id. at *3. Judge Karas, however, held that these" }, { "docid": "14587522", "title": "", "text": "no genuine issues of material fact, the Court grants summary judgment on claims two, nine, and ten (to the extent it is based respondeat superior liability under section 1983, a failure to train, or a policy and practice of ignoring excessive force). See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. 1. Monell claim The City is not liable under section 1983 solely because it employs police officers who use excessive force or commit torts. See, e.g., Monell at 691, 98 S.Ct. 2018 Instead, Plaintiff must identify a municipal “policy” or “custom” that caused the injury. Put another way, a municipal’s deliberate conduct must be the moving force behind the injury: there must be a causal link between the municipal action and the deprivation of the federal right. Id. at 694, 98 S.Ct. 2018. Inadequate police training is a basis for liability under section 1983 if the following factors are established: (1) the training is inadequate for the tasks that police officers perform; (2) the failure to train amounts to deliberate indifference to the rights of persons like Plaintiff who come into contact with the police; and (3) the inadequate training actually caused the constitutional injury. See City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.1989). That happens when the municipality makes a deliberate, conscious choice, and the resulting deficient training has a direct, causal link to the deprivation of federal rights. See City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. Similarly, a deliberate policy of failing to investigate (and therefore tolerating) excessive force also requires a deliberate choice that has a direct, causal link to the deprivation of rights. See Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir.1999) (finding no Monell liability because there was no excessive force); Henry v. County of Shasta, 132 F.3d 512, 520 (9th Cir.1997) (failure to fire or reprimand officers shows policy of deliberate indifference to their misconduct). Plaintiff alleged that Fremont police officers engaged in a pattern of excessive force and" }, { "docid": "19479796", "title": "", "text": "officers\"); Giaccio v. City of New York , 308 F. App'x 470, 472 (2d Cir. 2009) (holding that four constitutional violations \"falls far short of establishing a practice that is 'so persistent or widespread' as to justify the imposition of municipal liability\"); White v. City of New York , 206 F.Supp.3d 920, 938 (S.D.N.Y. 2016) (holding six incidents over five years insufficient to plausibly allege the existence of a municipal policy); see also Tieman v. City of Newburgh , No. 13-cv-4178 (KMK), 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (\"[T]he fact that there were allegations of thirteen instances of excessive force during arrests over four years (none of which involved findings or admissions of culpability) during which hundreds, if not thousands, of arrests were made does not plausibly demonstrate that the use of excessive force during arrest was so frequent and pervasive as to constitute a custom\"). Even if these incidents were sufficient to establish a widespread pattern of misconduct by Detective Terrell, Plaintiff shows no causal link between that pattern and his arrest. As the Court has explained, Detective Terrell did not participate in Plaintiff's arrest, and the only constitutional violation for which Plaintiff has filed this suit is false arrest. And there is no evidence in this record to even hint that whatever past misconduct Detective Terrell is guilty of was the cause of Plaintiff's alleged false arrest in September 2015. See Triano , 895 F.Supp.2d at 531. Summary judgment is accordingly granted on Plaintiff's municipal liability claim. IV. CONCLUSION For the reasons stated above, Defendants' motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to terminate all pending motions, to enter judgment in favor of Defendants, and to close this case. SO ORDERED. The following facts are drawn from the parties' Local Civil Rule 56.1 Statements and other submissions in connection with this motion and are undisputed or taken in the light most favorable to Plaintiff, unless otherwise noted. References to \"Def.'s 56.1\" and \"Pl.'s 56.1\" are to Defendant's Rule 56.1 statement and Plaintiff's Rule 56.1 counterstatement, respectively, submitted" }, { "docid": "16211043", "title": "", "text": "DeBellis’ injuries by failing to train its officers in deliberate indifference to the constitutional rights of citizens in her position. The bare assertion that defendants failed to provide adequate training and the mere fact that plaintiff is alleged to have suffered constitutional injury do not establish a failure to train amounting to deliberate indifference. Plaintiffs have not shown a pattern of violations. See generally Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000) (stating that failure to adequately train municipal employees ordinarily can be considered deliberate indifference only where the failure caused a pattern of violations). We grant summary judgment on plaintiffs’ Section 1983 as to the city of Allentown insofar as the claim alleges that defendants violated DeBellis’ constitutional rights when they mistakenly arrested her. b. Excessive Force Claim Plaintiffs allege that the city and the police department had a policy or custom which allowed for the unreasonable or excessive use of force in detaining, taking into custody and arresting suspects and that they deliberately failed to train their officers as to the proper use of force. Plaintiffs again rely solely on General Order 404.1 in support of their claim of a policy or custom of excessive force. This order does not mention the degree of force that may permissibly be used in making an arrest; plaintiffs’ reb-anee thereupon is therefore insufficient to show the municipality’s liability. Plaintiffs have offered no evidence that the city had a policy or custom of using excessive force in making arrests. Plaintiffs’ bare assertion that the municipal entity had a policy or custom of using excessive force fails to establish municipal liability. Nor do plaintiffs offer any evidence that the city failed to train its officers as to the use of force. Their bare assertion that the city failed to provide training does not establish that the entity failed to train, and acted with deliberate indifference in so doing. Plaintiffs have failed to show a pattern of excessive force violations, and the mere fact that plaintiff has alleged to have suffered constitutional injury does not establish municipal liability. We grant summary" }, { "docid": "22259486", "title": "", "text": "repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents. See, e.g., Ricciuti v. N.Y.C. Transit Authority, 941 F.2d at 123; Fiacco v. City of Rensselaer, 783 F.2d at 328 (“[w]hether or not the claims had validity, the very assertion of a number of such claims put the City on notice that there was a possibility that its police officers had used excessive force”). Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was “contrary to the practice of most police departments” and was “particularly dangerous” because it presented an unusually high risk that constitutional rights would be violated. See Dodd v. City of Norwich, 827 F.2d 1, 4-6 (2d Cir.), modified on reh’g on other grounds, 827 F.2d 1, 7 (2d Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); see also Oklahoma City v. Tuttle, 471 U.S. at 823-24, 105 S.Ct. at 2436; Sarus v. Rotundo, 831 F.2d 397, 401-02 & n. 3 (2d Cir.1987). Appellees argue that, under Sams v. Ro-tundo, a municipality that has adopted supervisory mechanisms for dealing with problem officers cannot be found to be deliberately indifferent to police misconduct in violation of constitutional rights. Their reliance on Sa-ms for that proposition is misplaced, for the verdict in favor of the plaintiffs in that case was reversed simply for lack of proof, as “the only relevant evidence presented by [plaintiffs] was the manner in which they themselves were arrested.” Id. at 402. See generally Oklahoma City v. Tuttle, 471 U.S. at 823-24, 105 S.Ct. at 2436 (single incident involving employee below the policymaking level generally will not suffice to support inference of a municipal custom or policy). The plaintiffs in Sams presented no evidence as to the municipality’s response to any prior incident of misconduct, no evidence that superior methods were in use in other police departments, and no expert testimony as to proper police procedures. We concluded that" } ]

[ { "docid": "10814734", "title": "", "text": "charged. My colleagues now propose to make the defense available to defendants whom the Government never sought to entice but who were influenced secondhand by a person to whom alone the Government’s inducements were directed. In so holding, the majority have rejected a rule of law that has received the approval of every court hearing criminal appeals in the federal system. The Supreme Court has expressed the rule very simply. Entrapment, the Court says, deals with the manufacturing of crime by “law enforcement officials and their agents,” Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963), with the performance of an illegal act “at the instance of governmental officials,” Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216. According to the Court, “[e]ntrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law enforcement officials.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (quoting Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216) (emphasis by Sherman Court). The Court has recognized as a standard entrapment instruction a charge that the jury should acquit if it had “a reasonable doubt whether the defendant had the previous intent or purpose to commit the offense .. . and did so only because he was induced or persuaded by some officer or agent of the government.” United States v. Russell, 411 U.S. 423, 427 n.4, 93 S.Ct. 1637, 1640, n.4, 36 L.Ed.2d 366 (1973). The substance of this standard instruction was given on three occasions by the court below without objection from defense counsel. However, because both defendants were asserting an entrapment defense, the court also charged over defense objection that if one of the defendants (Mrs. Valencia) was entrapped and then went out and induced another defendant (Mr. Valencia) to become involved, the second defendant (Mr. Valencia) would not be entitled to' the defense of entrapment. The majority hold this to be error, stating that “[i]f a person is brought into a criminal scheme after" } ]

[ { "docid": "22241364", "title": "", "text": "inducement, either through cross-examination or affirmative evidence, a defendant is entitled to have a court assess, as with every other element of an offense, whether the record contains sufficient evidence from which a reasonable jury can conclude beyond a reasonable doubt, United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972), that the prosecution has proved the defendant’s predisposition to commit the offense. See United States v. Valencia, supra, 645 F.2d at 1167-68 (evidence of predisposition sufficient to create issue for jury). But a defendant is not entitled to a court ruling on the minimal sufficiency of the prosecution’s evidence as to a defense that the accused has not placed in issue. A defendant’s failure to assert an entrapment defense prevents the prosecution from responding to evidence of inducement by presenting evidence of the defendant’s predisposition to commit the crime. We hold that a defendant who fails to assert entrapment as a factual defense at his trial, cannot assert it as a legal defense to his conviction. See United States v. Bishop, 367 F.2d 806, 809-10 (2d Cir. 1966). Although Lederer, having asserted the defense of entrapment at trial, can challenge the sufficiency of the evidence of his predisposition, his claim is without merit. In seeking only $5,000 for himself out of the $50,000 he received, Lederer displayed neither the greed of Myers nor the guile of Thompson and Murphy; nevertheless, the evidence at his trial fully entitled the jury to find his predisposition beyond a reasonable doubt. Predisposition may be established by “the accused’s ready response to the inducement,” United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971); United States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933). The videotape of the September 11 meeting reveals Lederer responding with alacrity. As he assured the sheik’s representatives, “I’m not a Boy Scout.” B. Excessive Government Role. Appellants contend that even if the traditional entrapment defense fails, whether factually in Lederer’s case or procedurally as to the other appellants, the conduct of Abscam violated standards of" }, { "docid": "6735906", "title": "", "text": "by collateral exploration. We therefore cannot say that the trial judge abused his discretion in refusing to allow Bocra to cross-examine Lemp about the other bribery cases. III. Our conclusion that Bocra was not erroneously deprived of the use of evidence relating to his entrapment defense requires us to explore whether on the evidence, the district court should have directed a judgment of acquittal on grounds of entrapment. We are asked to consider whether Bocra was entrapped as a matter of law. In order to defeat an entrapment defense, the Government must prove beyond a reasonable doubt that it did not initiate the crime or that the defendant was predisposed to commit it. The key inquiry is a subjective one; did the intent to commit a crime originate with the defendant or with the Government? The Supreme Court has held: [T]he fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises. . . The appropriate object of this permitted activity, frequently es sential to the enforcement of the law, is to reveal the criminal design; . A different question is presented when a criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they prosecute. Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932). The Court has on several occasions reaffirmed this subjective focus on the defendant’s predisposition to commit the crime as the essential element of the entrapment defense. See, e. g., Hampton, supra; United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The determination of where a criminal intent originates, however, is at times difficult, particularly when the" }, { "docid": "2767790", "title": "", "text": "XVII at 1081-83; Vol. XX at 1764-65. We conclude that this evidence is more than sufficient to sustain a conviction because the jury could reasonably conclude beyond a reasonable doubt that Mr. Lampley solicited the informant. V. Mr. Lampley further argues that the district court erroneously denied his motion for judgment of acquittal based on entrapment. We review the district court’s denial of a motion for judgment of acquittal de novo, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the government. United States v. Young, 954 F.2d 614, 616 (10th Cir.1992). The defense of entrapment prohibits law enforcement conduct which implants a criminal design in an innocent person’s mind and induces that person to commit a crime he is otherwise not predisposed to commit. See Jacobson v. United States, 503 U.S. 540, 548, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992) (citing Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932)). The inquiry in an entrapment defense has two parts: (1) the lawfulness of the government’s conduct, and (2) the defendant’s predisposition to engage in the criminal activity. See United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372, 376-78, 78 S.Ct. 819, 820-21, 822-23, 2 L.Ed.2d 848 (1958). Mr. Lampley only challenges the- sufficiency of evidence of his predisposition, independent of the government’s actions, to violate the law by conspiring to build and possess an explosive device. In making a determination on predisposition, this court focuses on the defendant’s propensities to commit the offense; whether the defendant was an “unwary innocent” or an “unwary criminal.” Sherman, 356 U.S. at 372, 78 S.Ct. at 821; see United States v. Fadel, 844 F.2d 1425, 1433 (10th Cir.1988). The question of entrapment generally is one for determination by the jury. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988). This court has determined that “the factfinder is traditionally in the better position to evaluate conflicting evidence" }, { "docid": "19383428", "title": "", "text": "an individual basis. Marcello I. The primary ground urged for reversal by Marcello is that the government’s investigatory conduct amounted to entrapment as a matter of law, and, alternatively, that the government’s conduct during the investigatory process was so outrageous and overreaching that his Fifth Amendment right to due process was violated. The district court, after a post-trial evidentiary hearing, rejected these arguments. Mar-cello, 537 F.Supp. 402. We agree with the district court’s analysis of the matter. Application of the entrapment defense is determined by well established legal principles. The Supreme Court has defined the parameters of the entrapment defense in four leading cases. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). These cases establish guidelines which govern our review of the evidence which the defendant argues establishes entrapment as a matter of law. “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.” Sorrells, 287 U.S. at 441, 53 S.Ct. at 212. Entrapment occurs when a defendant who was not predisposed to commit the crime does so as a result of the government’s inducement. The entrapment defense thus focuses on “the intent or predisposition of the defendant to commit the crime.” Russell, 411 U.S. at 429, 93 S.Ct. at 1641. In the instant ease, the district court, based on the record made at trial, refused to hold that there was entrapment as a matter of law, and submitted the matter to the jury under appropriate instructions. Although there may be instances where the undisputed facts establish the entrapment defense as a matter of law, as in Sherman, 356 U.S. at 373, 78 S.Ct. at 821, or where the evidence is simply insufficient to submit the issue to the jury, see, e.g." }, { "docid": "22241362", "title": "", "text": "citizens. Specifically, Members of Congress enjoy no special constitutional rule that requires prior suspicion of criminal activity before they may be confronted with a governmentally created opportunity to commit a crime. What is available in such circumstances is the traditional defense of entrapment, which prevents conviction of a person induced to commit a crime unless the prosecution can establish the person’s predisposition to commit the crime. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The entrapment defense exonerates a defendant who engages in criminal behavior when the activity of government agents “implant[s] in the mind of an innocent person the disposition to commit the alleged offense and induce[s] its commission,” Sorrells v. United States, supra, 287 U.S. at 442, 53 S.Ct. at 212. But the defense of entrapment is not established simply because government agents “afford opportunities or facilities for the commission of the offense,” Sorrells v. United States, supra, 287 U.S. at 441, 53 S.Ct. at 212, or engage in “deceit,” United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). The legal defense of entrapment is not established whenever a defendant is caught by a ruse. Although the defense of entrapment was available to all seven appellants, none ex cept Lederer elected to assert the defense at trial, or request a jury instruction on the issue. The defendants in the Myers and Thompson-Murphy trials made no attempt to avail themselves of the limited opportunity a defendant has to defend on the dual grounds of non-involvement and entrapment, see United States v. Valencia, 645 F.2d 1158, 1170-72 (2d Cir. 1980) (amended 1981). They claimed only that bribery had not occurred, the Myers defendants on the ground that Myers was only “playacting,”— pretending to promise official action — and Thompson and Murphy on the ground that proof was lacking that they had accepted money for promises of official action. We do not doubt that when an entrapment defense is raised by evidence of" }, { "docid": "17201450", "title": "", "text": "was not lowered down into the water in an effort to entice this appellant to do something he would not otherwise do — he jumped into the boat and took the bait before it could even be placed on a hook!” Answer to Final Brief at 4. With appropriate disregard of some apparent metaphoric hyperbole, we agree. In Jacobson, the majority opinion recognized that “there can be no dispute that the Government may use undercover agents to enforce the law” and “ ‘... the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,’ ” — U.S. at-, 112 S.Ct. at 1540, quoting Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932), and citing Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. at 820, and United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). Nonetheless, if the defense at trial shows that law officers did more than “merely afford opportunities or facilities for the commission of the offense” and, instead, “originate[d] a criminal design” and “induee[d] commission of the crime,” then “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” — U.S. at -, 112 S.Ct. at 1540. Accord United States v. Cooper, 35 MJ 417, 425 (CMA 1992); United States v. Whittle, 34 MJ 206, 208 (CMA 1992); United States v. Vanzandt, 14 MJ 332, 342-43 (CMA 1982). See also RCM 916(g), Manual for Courts-Martial, United States, 1984 (“It is a defense that the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.”). As with any affirmative defense, a military judge has a sua sponte duty to offer appropriate instructions to the members if entrapment is reasonably raised by the evidence. See United States v. Williams, 21 MJ 360, 362 (CMA 1986). Accord United States v. Buckley, 35 MJ" }, { "docid": "13829760", "title": "", "text": "90 U.Pa. L.Rev. 245, 246 (1942). The justification for the defense is “that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Three major Supreme Court cases, decided over a span of 41 years, establish that entrapment occurs “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. U.S. 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). Notwithstanding the forceful arguments to the contrary, it is clear that when entrapment is at issue the focal point of the inquiry is on the predisposition of the defendant. See United States v. Russell, 411 U.S. at 433, 93 S.Ct. at 1643. Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence “ ‘that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.’ ” United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1975) (quoting United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir.1974)). Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens, 524 F.2d at 444. During the government’s case, the trial court ruled that there was sufficient evidence in the record to raise the entrapment defense. The trial court found that the evidence of government monetary inducements and the initiation of contacts for the insurance scheme satisfied the defendants’ initial burden under United States v. Dickens, 524 F.2d 441, 443" }, { "docid": "12370862", "title": "", "text": "conclusions of law the district court held that the defendant had not proved entrapment as a matter of law, that the issue was properly submitted to the court as a finder of fact and that “[t]he government has met its burden by showing beyond a reasonable doubt that the defendant had the predisposition to commit the unlawful acts above mentioned.” Since its decision in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the Supreme Court has consistently held that when the defense of entrapment is asserted, the focus of the inquiry is upon the predisposition of the defendant to commit the act with which he is charged. In Sorrells, Chief Justice Hughes, writing for the majority, stated: It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises, (citations omitted). The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. Id. at 441 — 42, 53 S.Ct. at 212. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the opinion of Mr. Justice Rehnquist recites the history of the Supreme Court’s treatment of the entrapment defense. In Russell the Court expressly declined to depart from the established rule which focuses on the predisposition of the defendant and found that the defendant’s concession of predisposition was fatal to his claim of entrapment. In the more recent case of Hampton v. United States, -" }, { "docid": "1078431", "title": "", "text": "but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government. Sorrells [v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) ] and Sherman [v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) ] both recognize “that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,” 287 U.S., at 441, 53 S.Ct., at 212; 356 U.S., at 372, 78 S.Ct., at 820-21. Nor will the mere fact of deceit defeat a prosecution, see, e.g., Lewis v. United States, 385 U.S. 206, 208-209, 87 S.Ct. 424, 425-26, 17 L.Ed.2d 312 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). The office of the entrapment defense is to draw the line “between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, supra at 372, 78 S.Ct. 820-26. Where the issue of entrapment is raised by the evidence, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson v. United States, — U.S. —, —, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). To facilitate that determination, the defendant “may examine the conduct of the government agent.” Sherman v. United States, supra at 373, 78 S.Ct. at 821. “[0]n the other hand, the accused will be subjected to an appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence.” Id., quoting Sorrells v. United States, supra at 451, 53 S.Ct. at 216. The" }, { "docid": "22165181", "title": "", "text": "put all undercover activity that searches out contemplated or ongoing criminal conduct and even results in actual participation in the illegal enterprise. In this same category I would justify an agent’s inducement of others to engage in crime, so long as there is proof of predisposition by the others to participate in the illegal activity. Where, as here, there is absolutely no proof that the defendants had any disposition to commit an illegal act but for the government’s inducement, however, then the government’s actions are impermissible, and the defense of entrapment is available as a matter of law — and it is for a judge and not a jury to blow the whistle on the improper conduct. The entrapment defense thus implicates two interrelated but discrete elements: inducement and predisposition. See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Entrapment is a “relatively limited defense,” Russell, 411 U.S. at 435, 93 S.Ct. at 1644 that “focus[es] on the intent or predisposition of the defendant to commit the crime.” Id. at 429, 93 S.Ct. at 1641. When the entrapment issue is joined, the burden is on the government “to disprove the whole defense beyond a reasonable doubt.” United States v. Watson, 489 F.2d 504, 510 (3d Cir. 1973); see Government of the Virgin Islands v. Cruz, 478 F.2d 712, 717 & n.5 (3d Cir. 1973). The defense is a matter of statutory interpretation, rooted in the notion that Congress does not intend to punish a defendant who has committed all the elements of a proscribed offense if he was induced to commit them by the government. Russell, 411 U.S. at 433-35, 93 S.Ct. at 1643-44; Sorrells, 287 U.S. at 445-51, 53 S.Ct. at 214-16. The prosecution is not defeated by proof that the government has participated in deceit or merely provided an opportunity" }, { "docid": "19989027", "title": "", "text": "435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the defense of entrapment is “virtually unique to the criminal jurisprudence of the United States,” G. Fletcher, Rethinking Criminal Law, § 7.3.B, at 541 (1978); See Mikell, The Federal Courts, 90 U.Pa.L.Rev. 245, 246 (1942). The justification for the defense is “that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Three major Supreme Court cases, decided over a span of 41 years, establish that entrapment occurs “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. U.S. 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). Notwithstanding the forceful arguments to the contrary, it is clear that when entrapment is at issue the focal point of the inquiry is on the predisposition of the defendant. See United States v. Russell, 411 U.S. at 433, 93 S.Ct. at 1643. Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence “ ‘that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.’ ” United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975) (quoting United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974)). Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens, 524 F.2d at 444. III. Hearsay to Prove Disposition Until today, this Circuit has permitted the prosecution to introduce all" }, { "docid": "22241363", "title": "", "text": "53 S.Ct. at 212, or engage in “deceit,” United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). The legal defense of entrapment is not established whenever a defendant is caught by a ruse. Although the defense of entrapment was available to all seven appellants, none ex cept Lederer elected to assert the defense at trial, or request a jury instruction on the issue. The defendants in the Myers and Thompson-Murphy trials made no attempt to avail themselves of the limited opportunity a defendant has to defend on the dual grounds of non-involvement and entrapment, see United States v. Valencia, 645 F.2d 1158, 1170-72 (2d Cir. 1980) (amended 1981). They claimed only that bribery had not occurred, the Myers defendants on the ground that Myers was only “playacting,”— pretending to promise official action — and Thompson and Murphy on the ground that proof was lacking that they had accepted money for promises of official action. We do not doubt that when an entrapment defense is raised by evidence of inducement, either through cross-examination or affirmative evidence, a defendant is entitled to have a court assess, as with every other element of an offense, whether the record contains sufficient evidence from which a reasonable jury can conclude beyond a reasonable doubt, United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972), that the prosecution has proved the defendant’s predisposition to commit the offense. See United States v. Valencia, supra, 645 F.2d at 1167-68 (evidence of predisposition sufficient to create issue for jury). But a defendant is not entitled to a court ruling on the minimal sufficiency of the prosecution’s evidence as to a defense that the accused has not placed in issue. A defendant’s failure to assert an entrapment defense prevents the prosecution from responding to evidence of inducement by presenting evidence of the defendant’s predisposition to commit the crime. We hold that a defendant who fails to assert entrapment as a factual defense at his trial, cannot assert it as a legal defense to his conviction. See United States v. Bishop, 367 F.2d" }, { "docid": "12080534", "title": "", "text": "Thus looking at the charge in context we find that defense counsel had a charge on which to hang his mens rea arguments and did so to the best of his ability. His legal theory was covered in the charge, and his ability to present a defense was not impaired. The argument would not have been substantially different with a different instruction. We cannot say that the trial court abused its discretion by refusing the requested instruction. III. Predisposition — Collector, Trader or Both Rubio also argues that the extensive governmental effort to entice him to purchase and mail pornography rose to the level of entrapment as a matter of law. There is no question that the conduct of the government officials was offensive. But, the Supreme Court has emphasized that in finding entrapment we must focus on the defendant’s subjective mental state — on whether Rubio was predisposed to commit each of the criminal acts charged — not on the challenged official conduct. United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973); see also id. at 440-442, (Stewart, J., dissenting). Entrapment occurs when the Government inspires, incites, persuades or lures a person to commit the offense. Sorrels v. United States, 287 U.S. 435, 441, 53 5.Ct. 210, 212, 77 L.Ed. 413 (1932) (The police are granted authority “for the purpose of detecting and punishing crime, and not for the making of criminals.”). The courts may not convict a defendant when the Government’s deception actually implants the criminal design in the defendant’s mind. United States v. Russell, 411 U.S. at 436, 93 S.Ct. at 1645. The Government bears the burden of proving beyond a reasonable doubt that defendant was predisposed to commit the offense, United States v. Nations, 764 F.2d 1073, 1079 (5th Cir.1985), but entrapment is established as a matter of law only when no reasonable jury could have believed that defendant was predisposed to commit the offense. United States v. Arteaga, 807 F.2d 424 (5th Cir.1986). Rubio was convicted of two separate offenses, mailing and receiving child pornography. The Government engaged" }, { "docid": "10752543", "title": "", "text": "78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958); Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). However, the fact that governmental agents merely afford the opportunity for the commission of the offense does not constitute entrapment: “To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman, supra, id. The defendant’s lack of predisposition to commit the crime is the principal element of entrapment. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). See also Annotation, Narcotic Offenses— Entrapment, 22 A.L.R.Fed. 731 (1975). The defendant himself did not take the stand or present any affirmative evidence in support of his defense of entrapment. Nevertheless, he relies upon the principle that where (as he contends is presently the situation) the government’s own case in chief injects substantial evidence of entrapment into the case, the defendant is entitled to raise the defense by motion for acquittal and by requested instruction to the jury, even though he at the same time does not abandon a defense that the government must prove beyond a reasonable doubt his guilt of the conduct charged. Sears v. United States, 343 F.2d 139, 143 (5th Cir. 1965). To raise the affirmative defense of entrapment — i. e., the government’s inducement of the commission of a crime by one not predisposed to commit it — the defendant has the initial burden of producing evidence himself (or of pointing to government evidence) that shows government involvement or inducement. United States v. Hill, 626 F.2d 1301 (5th Cir. 1980); United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979). The nature of the required showing has been described as “some evidence, but more than a scintilla, that [he was] induced to commit the offense.” United States v. Groessel, 440 F.2d 602, 606, (5th Cir.), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). See also United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979); United States v. Wolffs, 594 F.2d" }, { "docid": "10752542", "title": "", "text": "TATE, Circuit Judge: The defendant was convicted after jury trial of both distribution and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), in three specific transactions. He received concurrent sentences on each count of which convicted. Upon his appeal, he contends (1) that the district court erroneously refused his request to instruct the jury as to entrapment and (2) that the court erred in failing to declare a mistrial sua sponte because of an unauthorized communication to a juror. Finding no merit in either contention, we affirm. 1. The Entrapment Issue The defendant Reyes complains that the trial court erred in refusing to charge the jury as to his entrapment defense. The district court refused to do so, finding that there was insufficient evidence to create a jury question on that issue. The entrapment defense permits acquittal when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958); Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). However, the fact that governmental agents merely afford the opportunity for the commission of the offense does not constitute entrapment: “To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman, supra, id. The defendant’s lack of predisposition to commit the crime is the principal element of entrapment. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). See also Annotation, Narcotic Offenses— Entrapment, 22 A.L.R.Fed. 731 (1975). The defendant himself did not take the stand or present any affirmative evidence in support of his defense of entrapment. Nevertheless, he relies upon the principle that where (as he contends is presently the situation) the government’s own case in chief injects substantial evidence of entrapment into the case, the defendant is entitled to raise the defense by motion for acquittal and by requested instruction" }, { "docid": "542303", "title": "", "text": "DYER, Circuit Judge: Wells was indicted on eight counts of possession with intent to distribute, and distribution of a controlled substance, LSD. The eight counts involved four sales. He relied solely on the defense of entrapment. The jury found him not guilty as to the first transaction (Counts 1 and 2), but guilty as to the last three (Counts 3 — 8). Wells appeals from the guilty verdict, assigning as error an instruction given by the trial court. Finding no error, however, we affirm. The jury was instructed that its task was to decide whether or not the defense of entrapment was available to the defendant. The court properly concentrated on the necessity of the government’s proving beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; United States v. Mosley, 5 Cir. 1974, 496 F.2d 1012; United States v. Workopich, 5 Cir. 1973, 479 F.2d 1142. After giving a general definition of entrapment, the court elaborated as follows: If then the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case the defendant was ready and willing to commit crimes, such as charged in the indictment, whenever opportunity was afforded and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt whether this defendant had the previous intent or purpose to commit any offense of.the character here charged and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him. The propriety of the above charge is not here" }, { "docid": "19989026", "title": "", "text": "to an undercover DEA agent. Webster was charged with two counts of distributing cocaine and two counts of possessing cocaine with the intent to distribute the same. At trial, his sole defense was entrapment. He attempted to prove that he was introduced to the undercover agent by the female informant and that it was because of her importunings that he did the illegal acts. In rebuttal, the prosecution argued that Webster was not an innocent dupe who was trapped into breaking the law by the government. In support of its argument, the prosecution put on the stand a DEA agent who testified that a few months before the arrest he had been told by a reliable informant that he had purchased cocaine from Webster on several occasions. Defense counsel’s objections to this testimony on the ground that it was hearsay were overruled. Webster was convicted on all four counts. On appeal, the convictions were affirmed. United States v. Webster, supra. II. Entrapment First recognized by the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the defense of entrapment is “virtually unique to the criminal jurisprudence of the United States,” G. Fletcher, Rethinking Criminal Law, § 7.3.B, at 541 (1978); See Mikell, The Federal Courts, 90 U.Pa.L.Rev. 245, 246 (1942). The justification for the defense is “that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Three major Supreme Court cases, decided over a span of 41 years, establish that entrapment occurs “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. U.S. 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641; Sherman v." }, { "docid": "23665009", "title": "", "text": "testimony of various individuals. Defendant asserted that this evidence and testimony should be suppressed because obtained in violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1976), and applicable Army regulations. After a hearing on this motion, the district court denied the motion to suppress. The alleged co-conspirators, with the exception of Wolffs, thereafter changed their pleas from not guilty to guilty. The charges against defendant Wolffs proceeded to trial, where the jury returned guilty verdicts on all three counts charged. II. ENTRAPMENT Defendant’s initial contention is that the district court committed reversible error in instructing the jury on the defense of entrapment. Defendant asserts that the charge given did not properly assign to the government the burden of proving defendant’s predisposition to commit the offenses charged beyond a reasonable doubt. In response, the government maintains that an entrapment instruction was not even required since defendant’s own testimony demonstrated that in facilitating a marijuana transaction his motivation was the opportunity for self-aggrandizement (i. e. defendant’s cooperation would generate goodwill and lead to future automobile sales). Alternatively, the government argues that even if there was sufficient evidence to charge the jury on the affirmative defense of entrapment, the instruction given correctly stated the law and in no way prejudiced substantial rights of defendant. A. Raising the Defense “Entrapment occurs ‘when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ ” United States v. Buckley, 586 F.2d 498, 501 (5th Cir. 1978), cert. denied, - U.S.--, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979), quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 213, 77 L.Ed. 413 (1932). See generally Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (defense of entrapment not available where defendant concedes a predisposition to commit the crime in question); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (no entrapment as a matter of constitutional" }, { "docid": "16446575", "title": "", "text": "ensnared them. Even though they did not raise or present evidence on this point at trial and did not object to the District Judge’s failure to instruct the jury about entrapment, appellants suggest that in presenting its side, the Government somehow made out a prima facie case of entrapment that it then bore the burden of disproving. Whatever agent Maestas’ level of involvement, we are certain that it did not demonstrate such unwarranted government action as mystically to constitute a prima facie case on entrapment. Predisposition is the key to this issue. Entrapment “is a relatively limited defense . . . rooted ... in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” U. S. v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366, 375 (1973), citing Sorrels v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Here the record completely undercuts appellants’ claim and fully demonstrates their predisposition to commit the crime of which they were, convicted. Crossman and Pierce also assert that “outrageous conduct” by the government should afford them the entrapment defense. Even if the government’s actions rose to such a level, the Supreme Court in Russell considered and explicitly rejected this argument. 411 U.S. at 433-434, 93 S.Ct. at 1643-44, 36 L.Ed.2d at 374-75. We point out, moreover, that in this Circuit the defense of entrapment is unavailable unless the defendant admits the facts upon which prosecution is based. U. S. v. Webster, 649 F.2d 346, 351 n.10 (5th Cir. 1981) (en banc); U. S. v. Greenfield, 554 F.2d 179, 181 (5th Cir. 1977), cert. denied 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978). Since appellants, relying on the commission broker theory, in effect deny those facts, they are not entitled to raise the defense of entrapment. Jury Instructions Crossman and Pierce challenge the court’s failure to give a requested jury instruction concerning registration requirements for firearms. They sought an instruction that the" }, { "docid": "13829759", "title": "", "text": "See aiso United States v. Bagnariol, 665 F.2d 877, 896-99 (9th Cir.1981) (the government agent’s residence in a state other than that of the defendant was not established solely to manufacture an inter state element, but was a result of a prior undercover operation). Because we find that interstate nexus here similarly was not artificially created to invoke federal jurisdiction, and does not infringe the standards of Perrin and Pécora, we conclude that Travel Act jurisdiction exists. II. Entrapment Issues In trial, and now on appeal, the defendants urged that they were innocent by reason of government entrapment. In our en banc opinion in United States v. Webster, 649 F.2d 346, 348-49 (5th Cir.1981), we summarized the principles relating to the defense of entrapment: First recognized by the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the defense of entrapment is “virtually unique to the criminal jurisprudence of the United States,” G. Fletcher, Rethinking Criminal Law, § 7.3.B, at 541 (1978); See Mikell, The Federal Courts, 90 U.Pa. L.Rev. 245, 246 (1942). The justification for the defense is “that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.” United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Three major Supreme Court cases, decided over a span of 41 years, establish that entrapment occurs “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. U.S. 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). Notwithstanding the forceful arguments to the contrary, it is clear that when entrapment is at issue the focal point of the inquiry is" } ]

[ { "docid": "10143593", "title": "", "text": "concept of ‘special factors counselling hesitation in the absence of affirmative action by Congress’ has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468. Applying Chilicky, we have held that where Congress has provided some mechanism for relief that it considers adequate to remedy constitutional violations, Bivens claims are precluded. Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 198 (9th Cir.1995) (denying Bivens claim to civilian employee of the Navy because Title VII provides the exclusive judicial remedy for claims of discrimina tion in federal employment); Bricker v. Rockwell Int'l Corp., 22 F.3d 871, 878 (9th Cir.1993) (denying a Bivens claim to an employee at the Hanford Nuclear Reservation because administrative procedures included a grievance procedure with arbitration as a final step, and the opportunity to file a formal complaint with the DOE, which it must investigate); Berry v. Hollander, 925 F.2d 311, 313 (9th Cir.1991) (denying a Bivens claim to a VA physician because he was subject to the regulations of the Department of Medicine and Surgery); see also Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989) (administrative remedies available under the Civil Service Reform Act to a probationary employee, although discretionary, were adequate to preclude a Bivens claim). III. DISCUSSION A. Congressional Inadvertence ASCS county staff who, like Barbara Moore, are not covered by the CSRA are therefore not eligible for the elaborate system of review of employment decisions by the Merit Systems Protection Board that Bush v. Lucas held foreclosed a Bivens claim. Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 2417-18, 76 L.Ed.2d 648 (1983). Moore argues that the failure to provide ASCS employees with the comprehensive remedies of the CSRA was inadvertent and that therefore a remedy for money damages should be judicially created. We disagree. Moore relies upon Krueger v. Lyng, 927 F.2d 1050 (8th Cir.1991). There the court found that an employee of the ASCS did have a Bivens claim. It was dispositive to the court that it simply is not true that" } ]

[ { "docid": "1784830", "title": "", "text": "reporting of abuses occurring in Audrain County’s ASCS office. He seeks damages and injunctive relief. The District Court granted the defendants’ motion for summary judgment, holding that Krueger’s Bivens claim was barred by “special factors” counselling against allowing such a claim. The District Court saw no indication that Congress inadvertently had failed to create a damages remedy for constitutional claims brought by ASCS county office employees like Krueger. On appeal, Krueger raises three issues: 1) the District Court erred in holding that a Bivens action is unavailable; 2) injunctive relief is allowed in such an action; and 3) defendants are not entitled to qualified immunity. II. The ASCS, a division of the Department of Agriculture, administers various Department programs including price support programs, agricultural conservation programs, and loan programs. It was created by the Secretary of Agriculture (“the Secretary”) pursuant to 16 U.S.C. § 590h(b) (1988), which requires the Secretary to establish state and local committees to administer these agricultural programs. The state committees are appointed by the Secretary, while the local “county committees” are elected by local farmers. 16 U.S.C. § 590h(b). The statute provides that the Secretary “shall make such regulations as are necessary relating to the selection and exercise of the functions of the respective committees, and to the administration, through such committees, of such programs.” Id. One of the regulations issued by the Secretary pursuant to this delegated power directs the county committee to “[ejmploy the county executive director [‘CED’] ... to serve at the pleasure of the county committee.” 7 CFR § 7.21 (1987). The CED is “responsible for the day-to-day operations of the county office” and executes the policies established by the county committee. 7 CFR § 7.26. The CED may be suspended or fired by either the state or county committee, or by the Deputy Administrator, State and County Operations, of the Department of Agriculture (“Deputy Administrator”). 7 CFR §§ 7.29 & 7.30. The regulations issued by the Secretary provide a very limited remedy for the CED. A fired or suspended CED is to be given a written statement of the reasons for" }, { "docid": "10143597", "title": "", "text": "to ASCS county employees while withholding others, the exclusion of ASCS employees from the CSRA’s administrative procedure for the resolution of retaliation claims cannot be characterized as inadvertent. We are therefore precluded from implying a Bivens remedy for Moore’s claims. See Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468 (“[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.”); Kotarski, 866 F.2d at 312 (“[s]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.”); cf. Bricker, 22 F.3d at 875 (failed bills “may suggest that Congress’s inaction, whatever its reasons, was not wholly inadvertent.”). B. Alternative Remedies Available to Moore Moore argues that in line with the 8th Circuit’s approach, a Bivens remedy should be judicially created because she has no other right to judicial review of the ASCS’s administrative decision to terminate her. We disagree. The district court correctly held that the APA provides Moore with judicial review of her termination. Final agency actions, like this one, are subject to judicial review: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to-judicial review thereof.” 5 U.S.C. § 702. Section 701(a)(2) of the APA does not, as Moore contends, exempt the ASCS from judicial review because its agency action is committed to agency discretion by law. Congress has granted the Secretary the authority to promulgate regulations “relating to the selection and exercise of the functions of the respective committees.” 16 U.S.C. § 590(h). The regulations at issue here, governing the procedures for suspending and removing ASCS county employees, are within this general statutory authority. 7 C.F.R. §§ 7.1-7.38 (1996). Moore’s rights and responsibilities were also delineated in the ASCS Handbook for County Office Personnel Management. The regulations provide that a county employee like Moore may be suspended and removed for cause by" }, { "docid": "10143596", "title": "", "text": "receive credit for their ASCS service, 5 U.S.C. § 3502(a)(4)(C)(i), and for their rights to annual leave and transfer, 5 U.S.C. § 6312(a)(1). When Congress has chosen to confer employee status on ASCS county staff, it has done so in express terms. The ASCS employees are included in the Civil Service Retirement System, for example, by inclusion of “an individual employed by a county committee established under section 590h(b) of title 16.” 5 U.S.C. § 8331(1)(F). When the USDA was restructured in 1994, Congress specifically stated: In the implementation of programs and activities assigned to the Consolidated Farm Service Agency, the Secretary may use interchangeably in local offices of the Agency both Federal employees of the Department and non-Federal employees of county and area committees established under section 8(b)(5) of the Soil Conservation and Domestic Allotment Act. 7 U.S.C. § 6932(e)(1). We cannot create a Bivens remedy if there are “indications that congressional action has not been inadvertent.” Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468. Because Congress has explicitly extended some employment rights to ASCS county employees while withholding others, the exclusion of ASCS employees from the CSRA’s administrative procedure for the resolution of retaliation claims cannot be characterized as inadvertent. We are therefore precluded from implying a Bivens remedy for Moore’s claims. See Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468 (“[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.”); Kotarski, 866 F.2d at 312 (“[s]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.”); cf. Bricker, 22 F.3d at 875 (failed bills “may suggest that Congress’s inaction, whatever its reasons, was not wholly inadvertent.”). B. Alternative Remedies Available to Moore Moore argues that in line with the 8th Circuit’s approach, a Bivens remedy should be judicially created because she has no other right to judicial review of the ASCS’s administrative decision to terminate her." }, { "docid": "1784845", "title": "", "text": "it simply is not true that Congress has authorized a comprehensive scheme governing claims arising out of ASCS county office employment. Rather, it seems plain to us that such employees were eliminated from civil service coverage, and relegated to a much less desirable scheme fashioned by the Secretary, by administrative decisions neither the fact of which nor the consequences of which did Congress foresee. It also seems plain to us that Congress never has given a moment’s thought to the question of what sort of remedies should be available to ASCS county office employees like Krueger. We therefore hold that Congress’s failure to provide a remedy for constitutional wrongs suffered by ASCS county office employees has been inadvertent. Krueger thus may proceed with his Bivens action. VI. Because the District Court held that a Bivens action was not available to Krueger, it did not reach the issues of whether injunctive relief is available and whether the defendants are entitled to qualified immunity. We decline to consider these issues before they have been addressed by the District Court. Accordingly, we reverse the order of the District Court granting summary judgment for the defendants and remand the case for further proceedings consistent with this opinion. . The opinion of the District Court is published as Krueger v. Lyng, 733 F.Supp. 75 (E.D.Mo. 1990). . According to the plaintiffs affidavit, in 1986 the Audrain County ASCS office administered over $3.5 million in direct payments to farmers and approximately $12 million in loans. Appellant's Appendix at 17. Nationwide, the ASCS disbursed between seven billion dollars and 25 billion dollars annually during 1982-1988. The Government Accountability Project’s Amicus Curiae Brief at 5. . CFR citations are to the 1987 regulations, the year that Krueger was fired. The relevant regulations, however, are virtually identical for the years 1986-90. . A federal employee is defined by the CSRA as someone (1) appointed in the civil service by one of the following acting in an official capacity— (A) the President; (B) a Member or Members of Congress, or the Congress; (C) a member of a uniformed service; (D)" }, { "docid": "1784843", "title": "", "text": "an “employee” pursuant to 5 U.S.C. § 2105, and is neither expressly excluded from nor expressly covered by the CSRA. By contrast, in Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988), the two plaintiffs denied relief complained of a personnel action covered expressly by the CSRA, which applied to them. The plaintiffs denied relief in McIntosh, 861 F.2d 524 (8th Cir.1988), were covered by the CSRA, as was the plaintiff in Hill v. Dep’t of Air Force, 884 F.2d 1318 (10th Cir.1989), and in Karamanos v. Egger, 882 F.2d 447 (9th Cir.1989). Maxey v. Kadrovach, 890 F.2d 73 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990), involved a Section 2105 employee who was excluded expressly from the CSRA protections generally afforded federal employees, as did Stephens v. Dep’t of Health and Human Serv., 901 F.2d 1571 (11th Cir.), cert. denied, — U.S. -, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990), Lombardi v. Small Business Admin., 889 F.2d 959 (10th Cir.1989), Brothers v. Custis, 886 F.2d 1282 (10th Cir.1989), Feit v. Ward, 886 F.2d 848 (7th Cir.1989), and Ko tarski v. Cooper, 866 F.2d 311 (9th Cir.1989). All of these cases ruling out Bivens actions deal with Section 2105 federal employees whose employment classification is either expressly excluded from or included in the general CSRA provisions; Krueger, on the other hand, because of the method chosen by the Secretary for his hiring, is not a Section 2105 employee and is a federal employee whose classification is neither included in nor expressly excluded from CSRA coverage. In short, Congress has not provided any remedial provisions whatsoever for ASCS county office employees like Krueger. The Supreme Court first recognized the “inadvertence exception” to the presumption against Bivens actions in Chilicky, 487 U.S. at 423, 108 S.Ct. at 2467. The courts have continued to note this exception. If the case at hand cannot be said to be an “inadvertence” case, then as a practical matter there is no such exception. Surely, though, the language of Chilicky was intended to have meaning. Despite the government’s strenuous arguments to the contrary," }, { "docid": "9790570", "title": "", "text": "(9th Cir.1991); Volk, 866 F.2d at 403; Pinar, 747 F.2d at 912. Finally, Robbins relies on three cases, Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991), Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir.1987), and Williams v. Internal Revenue Service, 745 F.2d 702 (D.C.Cir.1984), to suggest that where the CSRA has not provided a complete remedy, a Bivens action should' be appropriate. That reliance is wholly misplaced. In Krueger, the Eighth Circuit held that a federal employee who was specifically excluded from the extensive remedies of the CSRA could maintain a Bivens action for his retaliatory discharge. 927 F.2d at 1052-54. Krueger provides little guidance for a case, like thé present one, where an employee covered under the CSRA complains of injury. So long as an employee falls within the realm of the CSRA, the CSRA’s extensiveness strongly advocates against augmenting that remedy. Schowengerdt is equally unhelpful. Although the Ninth Circuit did hold in Schowengerdt that the plaintiff could state a constitutional violation for the search and seizure of his office furnishings, the court subsequently called that holding into question in Saul v. United States, 928 F.2d 829, 839-40 (9th Cir.1991), in light of the Supreme Court’s decision in Chilicky. The D.C. Circuit placed similar limits on Williams, a case analogous to Schowengerdt, in a unanimous en banc decision, Spagnola v. Mathis, 859 F.2d 223, 230 (D.C.Cir.1988) (en banc). Robbins has failed to distinguish the rationales of Bush or Chilicky, our holdings in Feit, Moon and Ellis, or the abundant case law in other circuits, from the present case. The CSRA provided Robbins, like Feit and Moon, the opportunity to file a complaint with OSC. We decline to interfere with the statutory remedial system Congress has established and fashion constitutional remedies for Robbins. We therefore hold that the district court appropriately determined that Robbins ,had failed to state any constitutional claims for which relief could be granted. For the foregoing reasons, we affirm both decisions of the district court to dismiss Robbins’s complaints. AFFIRMED. . A district court in the Eastern District of Louisiana did confront this" }, { "docid": "22573195", "title": "", "text": "fail to see how these additional considerations can transform an administrative decision, albeit an extremely important administrative decision, into a judicial one. We conclude that the district court correctly held that the Panel is not eligible for absolute immunity in this matter. B. In allowing the plaintiffs cause of action to proceed in Bivens, the Supreme Court noted that “[t]he present case involves no special factors counseling hesitation in the absence of affirmative action by Congress.” 403 U.S. at 396, 91 S.Ct. at 2004. In the instant matter, the Panel contends that “special factors counseling hesitation” exist because Duffy could have filed an administrative complaint regarding the alleged employment discrimination under the EEO Plan for the United States District Court for the Southern District of Iowa. See Appellees’ Br. at 20. Because Duffy could have accessed the EEO Plan remedies, the Panel suggests that Duffy’s suit be dismissed. See, e.g., Carter v. Kurzejeski, 706 F.2d 835, 839 n. 5, 842-43 (8th Cir.1983) (dismissing Bivens action because “the arbitral and administrative procedures recognized and created by the Civil Service Reform Act, which provide ultimately for some judicial review, are the exclusive means of redress from a discharge from federal employment based on anti-union animus, thus barring independent federal district court jurisdiction under other statutes altogether” (emphasis in original)). Respectfully, we must again disagree. The administrative scheme relied on by the Panel was instituted at the direction of the Judicial Conference. See I J.A. at 46, Tab 5. In Krueger v. Lyng, 927 F.2d 1050 (8th Cir.1991), we emphasized that: Only Congress has the power to decide that a statutory or administrative scheme will foreclose a Bivens action. To allow an administratively-created scheme to foreclose a Bivens action, without some real indication that Congress intended the administratively-created scheme to have that result, would require us to hold that the legislative power to foreclose a Bivens action has been delegated — a delegation al most certainly in violation of the separation of powers doctrine. Id. at 1055 .(citations omitted) (emphasis added). In this case, the Panel has presented no support that Congress intended" }, { "docid": "1784837", "title": "", "text": "is hired by and serves at the pleasure of the elected ASCS county committee. This means that the CED is not a federal employee as defined by the CSRA, and therefore does not have the benefit of the extensive remedies that this elaborate statute affords. See Hamlet v. United States, 873 F.2d 1414, 1415 (Fed.Cir.1989) (“[t]he parties agree that [plaintiffs] employment status is not governed by the general civil service provisions of Title 5 and that she is not an ‘employee’ as defined in 5 U.S.C. § 2105”). Based on our reading of Bush and Chil-icky, our decision in this case turns on two issues: 1) whether the limited administratively-created remedy available to ASCS county office employees (like Krueger) is sufficient to preclude a Bivens action; and if not, then 2) whether Congress’s omission to recognize a constitutional tort claim for ASCS county office employees was “inadvertent.” IV. When determining whether an available remedy precludes a Bivens action, we must examine the relevant Congressional scheme. As a general proposition, it is Congress that sets the terms and conditions of federal employment. “Congress is the body charged with making the inevitable compromises required_” Chilicky, 487 U.S. at 429, 108 S.Ct. at 2470. For these purposes, then, administratively- created remedies are significant only to the extent they are developed pursuant to explicit statutory direction or guidance; we cannot evaluate the Bivens implications of an administrative remedial scheme without examining its statutory genesis. The statute creating the ASCS does not direct the Secretary of Agriculture to create a specific administrative scheme for overseeing the ASCS programs. Instead, the statute calls for the election of local county committees, and requires the Secretary to “make such regulations as are necessary relating to the selection and exercise of the functions of the respective committees, and to the administration, through such committees, of such programs.” 16 U.S.C. § 590h(b). It is from this common and very general enabling-statute language that the Secretary derives the power to create the administrative remedial scheme for ASCS county office employees described in part II of this opinion. Only Congress has the" }, { "docid": "1784839", "title": "", "text": "power to decide that a statutory or administrative scheme will foreclose a Bivens action. See generally, Chilicky, 487 U.S. 412, 108 S.Ct. 2460; Bush, 462 U.S. 367, 103 S.Ct. 2404. To allow an administratively-created scheme to foreclose a Bivens action, without some real indication that Congress intended the administratively-created scheme to have that result, would require us to hold that the legislative power to foreclose a Bivens action has been delegated — a delegation almost certainly in violation of the separation of powers doctrine. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989) (“Congress generally cannot delegate its legislative power to another Branch.”) (upholding the sentencing guidelines as constitutional). We do not need to reach the constitutional question, however, for here it is clear that the general enabling language used in 16 U.S.C. § 590h(b) cannot be read to evince an intent by Congress to provide a separate (and less desirable) remedial scheme for ASCS county office employees. The statute authorizes the Secretary to issue such regulations as he deems necessary; it does not convey any intention by Congress to deal in any particular way with remedies for wronged ASCS county office employees, nor does it even suggest a policy decision about Bivens actions, upon which the Secretary might act. Congress has addressed federal employees (including Department of Agriculture employees) and the remedies available to them through the CSRA; no mention of this subject, either extending or denying CSRA coverage to ASCS county office employees, is made in either 16 U.S.C. § 590h(b) or the CSRA. It was solely the Secretary’s decision, not Congress’s, to have the local committees hire the CEDs, and it was this decision that resulted in the exclusion of such employees from coverage by the CSRA. We note that the remedy made available to Krueger by the Secretary is very limited, and indeed may even be characterized as “hollow,” as the extent of his remedy is limited to appealing to the supervisor of those who fired him. If Congress intended this meager remedy to be Krueger’s exclusive remedy, then" }, { "docid": "22573196", "title": "", "text": "the Civil Service Reform Act, which provide ultimately for some judicial review, are the exclusive means of redress from a discharge from federal employment based on anti-union animus, thus barring independent federal district court jurisdiction under other statutes altogether” (emphasis in original)). Respectfully, we must again disagree. The administrative scheme relied on by the Panel was instituted at the direction of the Judicial Conference. See I J.A. at 46, Tab 5. In Krueger v. Lyng, 927 F.2d 1050 (8th Cir.1991), we emphasized that: Only Congress has the power to decide that a statutory or administrative scheme will foreclose a Bivens action. To allow an administratively-created scheme to foreclose a Bivens action, without some real indication that Congress intended the administratively-created scheme to have that result, would require us to hold that the legislative power to foreclose a Bivens action has been delegated — a delegation al most certainly in violation of the separation of powers doctrine. Id. at 1055 .(citations omitted) (emphasis added). In this case, the Panel has presented no support that Congress intended to delegate to the Judicial Conference the authority to preempt a Bivens action in favor of administrative remedies. We accordingly conclude that Duffy is not forestalled from pursuing a Bivens action on this ground. C. Finally, the Panel argues that it is entitled to qualified immunity from Duffy’s suit. Public “officials performing discretionary functions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “This is an objective standard,” Swenson v. Trickey, 995 F.2d 132, 133 (8th Cir.1993), and its application to the circumstances of a particular case presents a question of law. Id. We have held that [a] right is ‘clearly established’ for qualified immunity purposes if the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected" }, { "docid": "1784828", "title": "", "text": "BOWMAN, Circuit Judge. Plaintiff Robert V. Krueger, Jr. appeals from the order of the District Court granting summary judgment for the defendants. The issue with which we deal is whether Krueger, a former employee of a county office of the Agricultural Stabilization and Conservation Service (“ASCS”), may maintain a Bivens action against the federal officials named as defendants. The District Court held that he may not. We reverse and remand. I. Krueger served as the County Executive Director (“CED”) of Audrain County, Missouri, for the United States Department of Agriculture’s ASCS from September 1983 until his termination in January 1987. While CED, Krueger discovered evidence of irregularities and abuses occurring in the operation of the Agriculture Department’s farm price and conservation programs in Audrain County. He began to report these problems to Morris Westfall, the Missouri ASCS State Executive Director, in January 1984. Krueger alleges that initially Westfall and the State ASCS Committee tried to hinder further investi gation of the irregularities, and that he repeatedly was discouraged from going public with his evidence. After Krueger bypassed the State Committee and brought his evidence to the attention of an auditor from the Office of the Inspector General (“OIG”), however, an audit was finally performed on the Audrain County ASCS Office in August 1984. The results of the OIG audit, released in April 1986, substantially supported Krueger’s claims of irregularities. The report also indicated that the irregularities had been corrected during Krueger’s tenure as CED. In December 1986, Krueger was suspended by the State ASCS Office on charges that he intimidated employees under his supervision and failed to follow proper office procedures. After a hearing by the State Committee, Krueger was fired by the Committee. Krueger appealed his termination to the ASCS Deputy Administrator for State and County Operations, Earle Badenbaugh, who appointed a hearing examiner. After a three-day hearing, the hearing examiner recommended that Krueger’s firing be upheld, and Baden-baugh adopted that recommendation. Krueger then filed the present Bivens action, alleging that he had been discharged in violation of his first amendment rights in retaliation for his actions concerning the" }, { "docid": "1784836", "title": "", "text": "affirmative action by Congress” has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies. Id. We have previously noted these limitations, stating that [t]he result is a sort of presumption against judicial recognition of direct actions for violations of the Constitution by federal officials.... If Congress has not explicitly created such a right of action, and if it has created other remedies to vindicate (though less completely) the particular rights being asserted in a given case ... [then only] if Congress’s omission to recognize a constitutional tort claim was “inadvertent” will the courts be free to allow such a claim. McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir.1988). Here, the relevant statutory scheme created to provide constitutional tort remedies for federal employees is the CSRA. As noted earlier, a CED is hired by and serves at the pleasure of the elected ASCS county committee. This means that the CED is not a federal employee as defined by the CSRA, and therefore does not have the benefit of the extensive remedies that this elaborate statute affords. See Hamlet v. United States, 873 F.2d 1414, 1415 (Fed.Cir.1989) (“[t]he parties agree that [plaintiffs] employment status is not governed by the general civil service provisions of Title 5 and that she is not an ‘employee’ as defined in 5 U.S.C. § 2105”). Based on our reading of Bush and Chil-icky, our decision in this case turns on two issues: 1) whether the limited administratively-created remedy available to ASCS county office employees (like Krueger) is sufficient to preclude a Bivens action; and if not, then 2) whether Congress’s omission to recognize a constitutional tort claim for ASCS county office employees was “inadvertent.” IV. When determining whether an available remedy precludes a Bivens action, we must examine the relevant Congressional scheme. As a general proposition, it is Congress that sets the" }, { "docid": "1784842", "title": "", "text": "the very least, the use of this enabling language indicates absolutely no intent to treat ASCS county office employees differently in any manner from other federal employees, or to exclude them from civil service protection. Thus, the exclusion of these ASCS county office employees from civil service coverage is an “inadvertent omission” by Congress. Congress did not direct, or in any way imply, that these employees should be excluded from the CSRA; their exclusion is solely the result of the Secretary’s sua sponte decision to use a “non-traditional” hiring method. It is not a “non-inadvertent” act by Congress that excludes Krueger from civil service protection; instead, this exclusion results solely from the Secretary’s having used standard enabling language as the basis for adopting an uncommon hiring practice. An analysis of previous cases applying the Chilicky standard to Bivens actions brought by federal employees is further evidence that Congress’s failure to provide ASCS county office employees with a constitutional tort remedy was inadvertent. Because of the way in which he was hired, Krueger is not considered an “employee” pursuant to 5 U.S.C. § 2105, and is neither expressly excluded from nor expressly covered by the CSRA. By contrast, in Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988), the two plaintiffs denied relief complained of a personnel action covered expressly by the CSRA, which applied to them. The plaintiffs denied relief in McIntosh, 861 F.2d 524 (8th Cir.1988), were covered by the CSRA, as was the plaintiff in Hill v. Dep’t of Air Force, 884 F.2d 1318 (10th Cir.1989), and in Karamanos v. Egger, 882 F.2d 447 (9th Cir.1989). Maxey v. Kadrovach, 890 F.2d 73 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990), involved a Section 2105 employee who was excluded expressly from the CSRA protections generally afforded federal employees, as did Stephens v. Dep’t of Health and Human Serv., 901 F.2d 1571 (11th Cir.), cert. denied, — U.S. -, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990), Lombardi v. Small Business Admin., 889 F.2d 959 (10th Cir.1989), Brothers v. Custis, 886 F.2d 1282 (10th Cir.1989), Feit v." }, { "docid": "1784840", "title": "", "text": "he deems necessary; it does not convey any intention by Congress to deal in any particular way with remedies for wronged ASCS county office employees, nor does it even suggest a policy decision about Bivens actions, upon which the Secretary might act. Congress has addressed federal employees (including Department of Agriculture employees) and the remedies available to them through the CSRA; no mention of this subject, either extending or denying CSRA coverage to ASCS county office employees, is made in either 16 U.S.C. § 590h(b) or the CSRA. It was solely the Secretary’s decision, not Congress’s, to have the local committees hire the CEDs, and it was this decision that resulted in the exclusion of such employees from coverage by the CSRA. We note that the remedy made available to Krueger by the Secretary is very limited, and indeed may even be characterized as “hollow,” as the extent of his remedy is limited to appealing to the supervisor of those who fired him. If Congress intended this meager remedy to be Krueger’s exclusive remedy, then his present action would be barred. We see no indication, however, of any such Congressional intent. Accordingly, the administratively-created remedy devised by the Secretary pursuant to the boiler-plate enabling language of 16 U.S.C. § 590h(b) does not foreclose Krueger’s Bivens action. V. Because it is clear that Krueger’s limited administrative remedy is not the product of conscious Congressional design, we must determine whether the failure of Congress to provide a constitutional tort remedy for ASCS county office employees “has not been inadvertent.” Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468. As noted earlier, the Secretary’s power to create the ASCS county office positions comes from the standard enabling language of 16 U.S.C. § 590h(b). The same kind of language is used in numerous other statutes to give the Executive branch the power to hire federal employees. Thus, Congress’s apparent intent in granting the Secretary such power was to allow him to hire employees in the manner similar to other Executive branch employees, and to have these employees subject to the same statutory protections. At" }, { "docid": "1784838", "title": "", "text": "terms and conditions of federal employment. “Congress is the body charged with making the inevitable compromises required_” Chilicky, 487 U.S. at 429, 108 S.Ct. at 2470. For these purposes, then, administratively- created remedies are significant only to the extent they are developed pursuant to explicit statutory direction or guidance; we cannot evaluate the Bivens implications of an administrative remedial scheme without examining its statutory genesis. The statute creating the ASCS does not direct the Secretary of Agriculture to create a specific administrative scheme for overseeing the ASCS programs. Instead, the statute calls for the election of local county committees, and requires the Secretary to “make such regulations as are necessary relating to the selection and exercise of the functions of the respective committees, and to the administration, through such committees, of such programs.” 16 U.S.C. § 590h(b). It is from this common and very general enabling-statute language that the Secretary derives the power to create the administrative remedial scheme for ASCS county office employees described in part II of this opinion. Only Congress has the power to decide that a statutory or administrative scheme will foreclose a Bivens action. See generally, Chilicky, 487 U.S. 412, 108 S.Ct. 2460; Bush, 462 U.S. 367, 103 S.Ct. 2404. To allow an administratively-created scheme to foreclose a Bivens action, without some real indication that Congress intended the administratively-created scheme to have that result, would require us to hold that the legislative power to foreclose a Bivens action has been delegated — a delegation almost certainly in violation of the separation of powers doctrine. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989) (“Congress generally cannot delegate its legislative power to another Branch.”) (upholding the sentencing guidelines as constitutional). We do not need to reach the constitutional question, however, for here it is clear that the general enabling language used in 16 U.S.C. § 590h(b) cannot be read to evince an intent by Congress to provide a separate (and less desirable) remedial scheme for ASCS county office employees. The statute authorizes the Secretary to issue such regulations as" }, { "docid": "1784841", "title": "", "text": "his present action would be barred. We see no indication, however, of any such Congressional intent. Accordingly, the administratively-created remedy devised by the Secretary pursuant to the boiler-plate enabling language of 16 U.S.C. § 590h(b) does not foreclose Krueger’s Bivens action. V. Because it is clear that Krueger’s limited administrative remedy is not the product of conscious Congressional design, we must determine whether the failure of Congress to provide a constitutional tort remedy for ASCS county office employees “has not been inadvertent.” Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468. As noted earlier, the Secretary’s power to create the ASCS county office positions comes from the standard enabling language of 16 U.S.C. § 590h(b). The same kind of language is used in numerous other statutes to give the Executive branch the power to hire federal employees. Thus, Congress’s apparent intent in granting the Secretary such power was to allow him to hire employees in the manner similar to other Executive branch employees, and to have these employees subject to the same statutory protections. At the very least, the use of this enabling language indicates absolutely no intent to treat ASCS county office employees differently in any manner from other federal employees, or to exclude them from civil service protection. Thus, the exclusion of these ASCS county office employees from civil service coverage is an “inadvertent omission” by Congress. Congress did not direct, or in any way imply, that these employees should be excluded from the CSRA; their exclusion is solely the result of the Secretary’s sua sponte decision to use a “non-traditional” hiring method. It is not a “non-inadvertent” act by Congress that excludes Krueger from civil service protection; instead, this exclusion results solely from the Secretary’s having used standard enabling language as the basis for adopting an uncommon hiring practice. An analysis of previous cases applying the Chilicky standard to Bivens actions brought by federal employees is further evidence that Congress’s failure to provide ASCS county office employees with a constitutional tort remedy was inadvertent. Because of the way in which he was hired, Krueger is not considered" }, { "docid": "6375696", "title": "", "text": "522 (1975), the Court found that 42 U.S.C. ■ § 405(h) precludes actions to enforce rights tinder Title II of the Act. Section 405(h) says in so many words that a person can bring suit in federal court to enforce Title II only by way of the judicial review provisions of Title II, which means in effect under 42 U.S.C. § 405(g). Lynch, 719 F.2d at 510. The court contrasted the conclusion in Weinberger v. Salfi with the case before it, which had been brought against the governor of Massachusetts and various state officials, not on the basis that state rather than federal defendants had been sued, but on the basis that the SSA provision before it, 42 U.S.C. § 671(b) “in no way purports to limit the availability of relief under any other provision.\" Id. . In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), the United States Supreme Court authorized a direct cause of action for damages against federal officials based upon a deprivation of constitutional rights. See also Fuller v. Secretary of Defense of the United States, 30 F.3d 86, 88 (8th Cir.), cert. denied,-U.S.-, 115 S.Ct. 583, 130 L.Ed.2d 497 (1994); Krueger v. Lyng, 927 F.2d 1050, 1053 (8th Cir.1991). A \"Bivens” action is sometimes referred to as a federal law analogue to an action under 42 U.S.C. § 1983. Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448, 1452 (8th Cir.1994), cert. denied,-U.S.-, 115 S.Ct. 721, 130 L.Ed.2d 627 (1995). In Bivens, the Court specified two exceptions to the availability of a direct cause of action for damages: where Congress has provided an alternative remedy, or where there are \"special factors counselling hesitation in the absence of affirmative action by Congress.” Krueger, 927 F.2d at 1053 (citing Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05). . Title 42 U.S.C. § 1983 provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the" }, { "docid": "1784844", "title": "", "text": "Ward, 886 F.2d 848 (7th Cir.1989), and Ko tarski v. Cooper, 866 F.2d 311 (9th Cir.1989). All of these cases ruling out Bivens actions deal with Section 2105 federal employees whose employment classification is either expressly excluded from or included in the general CSRA provisions; Krueger, on the other hand, because of the method chosen by the Secretary for his hiring, is not a Section 2105 employee and is a federal employee whose classification is neither included in nor expressly excluded from CSRA coverage. In short, Congress has not provided any remedial provisions whatsoever for ASCS county office employees like Krueger. The Supreme Court first recognized the “inadvertence exception” to the presumption against Bivens actions in Chilicky, 487 U.S. at 423, 108 S.Ct. at 2467. The courts have continued to note this exception. If the case at hand cannot be said to be an “inadvertence” case, then as a practical matter there is no such exception. Surely, though, the language of Chilicky was intended to have meaning. Despite the government’s strenuous arguments to the contrary, it simply is not true that Congress has authorized a comprehensive scheme governing claims arising out of ASCS county office employment. Rather, it seems plain to us that such employees were eliminated from civil service coverage, and relegated to a much less desirable scheme fashioned by the Secretary, by administrative decisions neither the fact of which nor the consequences of which did Congress foresee. It also seems plain to us that Congress never has given a moment’s thought to the question of what sort of remedies should be available to ASCS county office employees like Krueger. We therefore hold that Congress’s failure to provide a remedy for constitutional wrongs suffered by ASCS county office employees has been inadvertent. Krueger thus may proceed with his Bivens action. VI. Because the District Court held that a Bivens action was not available to Krueger, it did not reach the issues of whether injunctive relief is available and whether the defendants are entitled to qualified immunity. We decline to consider these issues before they have been addressed by the" }, { "docid": "6375697", "title": "", "text": "federal officials based upon a deprivation of constitutional rights. See also Fuller v. Secretary of Defense of the United States, 30 F.3d 86, 88 (8th Cir.), cert. denied,-U.S.-, 115 S.Ct. 583, 130 L.Ed.2d 497 (1994); Krueger v. Lyng, 927 F.2d 1050, 1053 (8th Cir.1991). A \"Bivens” action is sometimes referred to as a federal law analogue to an action under 42 U.S.C. § 1983. Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448, 1452 (8th Cir.1994), cert. denied,-U.S.-, 115 S.Ct. 721, 130 L.Ed.2d 627 (1995). In Bivens, the Court specified two exceptions to the availability of a direct cause of action for damages: where Congress has provided an alternative remedy, or where there are \"special factors counselling hesitation in the absence of affirmative action by Congress.” Krueger, 927 F.2d at 1053 (citing Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05). . Title 42 U.S.C. § 1983 provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Section 1983 was designed to provide a \"broad remedy for violations of federally protected civil rights.” Monell v. New York City Dep’t. of Soc. Serv., 436 U.S. 658, 685, 98 S.Ct. 2018, 2033, 56 L.Ed.2d 611 (1978). However, § 1983 provides no substantive rights. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979). \"[Ojne can- . not go into court and claim a ‘violation of section 1983' — for section 1983 by itself does not protect anyone against anything.” Id. Rather, § 1983 provides a remedy for violations of all \"rights, privileges, or immunities secured by the Constitution and laws [of the United States].\" 42 U.S.C. § 1983" }, { "docid": "1784829", "title": "", "text": "Krueger bypassed the State Committee and brought his evidence to the attention of an auditor from the Office of the Inspector General (“OIG”), however, an audit was finally performed on the Audrain County ASCS Office in August 1984. The results of the OIG audit, released in April 1986, substantially supported Krueger’s claims of irregularities. The report also indicated that the irregularities had been corrected during Krueger’s tenure as CED. In December 1986, Krueger was suspended by the State ASCS Office on charges that he intimidated employees under his supervision and failed to follow proper office procedures. After a hearing by the State Committee, Krueger was fired by the Committee. Krueger appealed his termination to the ASCS Deputy Administrator for State and County Operations, Earle Badenbaugh, who appointed a hearing examiner. After a three-day hearing, the hearing examiner recommended that Krueger’s firing be upheld, and Baden-baugh adopted that recommendation. Krueger then filed the present Bivens action, alleging that he had been discharged in violation of his first amendment rights in retaliation for his actions concerning the reporting of abuses occurring in Audrain County’s ASCS office. He seeks damages and injunctive relief. The District Court granted the defendants’ motion for summary judgment, holding that Krueger’s Bivens claim was barred by “special factors” counselling against allowing such a claim. The District Court saw no indication that Congress inadvertently had failed to create a damages remedy for constitutional claims brought by ASCS county office employees like Krueger. On appeal, Krueger raises three issues: 1) the District Court erred in holding that a Bivens action is unavailable; 2) injunctive relief is allowed in such an action; and 3) defendants are not entitled to qualified immunity. II. The ASCS, a division of the Department of Agriculture, administers various Department programs including price support programs, agricultural conservation programs, and loan programs. It was created by the Secretary of Agriculture (“the Secretary”) pursuant to 16 U.S.C. § 590h(b) (1988), which requires the Secretary to establish state and local committees to administer these agricultural programs. The state committees are appointed by the Secretary, while the local “county committees” are" } ]

[ { "docid": "22719890", "title": "", "text": "have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e. g., Younger v. Harris, 401 U. S. 37 (1971). As this Court emphasized only last Term in Rewis v. United States, supra, we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, “would alter sensitive federal-state relationships [and] could overextend limited federal police resources.” While we noted there that “[i]t is not for us to weigh the merits of these factors,” we went on to conclude that “the fact that they are not even discussed in the legislative history . . . strongly suggests that Congress did not intend that [the statute have the broad reach].” 401 U. S., at 812. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, § 1202 (a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent a clearer statement of intention from Congress than is present here, we do not interpret § 1202 (a) to reach the “mere possession” of firearms. III Having concluded that the commerce requirement in § 1202 (a) must be read as part of the “possesses”" } ]

[ { "docid": "22354925", "title": "", "text": "construction of the Necessary and Proper Clause that Marshall saw justification for Congress’s creation of the national bank, the power to create which is nowhere enumerated in Article I. Whether that broad construction justifies applying § 666 here depends on Congress’s intent in enacting the statute, as well as on the nature of the federal interest embodied in this case and the relationship between that interest and Lipscomb’s conduct. B. Legislative History History often tells us why Congress deemed a statute necessary and proper. Not so for § 666, however, because it was enacted as part of an omnibus spending bill of the type that makes the search for legislative history Sisyphean. What history exists is multilayered, sparse, equivocal, and even mysterious. By no means, I respectfully submit, is it capable of supporting Judge Smith’s contention that “Congress did not find it necessary that § 666 be applied in cases not involving federal funds or programs.” 1. The 1986 Technical Amendment We owe the current language of § 666 to the Criminal Law and Procedure Tech nical Amendments Act of 1986. As that Act’s title suggests, and as we recognized in Westmoreland, Congress did not intend the Act to change § 666 substantively in ways that would affect our reading of it here. This is important, because the 1986 amendment rewrote language that reveals how Congress would have answered our constitutional question in 1984. 2. The 198k Enactment As first enacted, § 666(b) read: Whoever, being an agent of an organization, or of a State or local government agency ... [that receives more than $10,000 a year in federal funds], solicits, demands, accepts, or agrees to accept anything of value from a person or organization other than his employer or principal for or because of the recipient’s conduct in any transaction or matter or a series of transactions or matters involving $5,000 or more concerning the affairs of such organization or State or local government agency, shall be imprisoned. .. , The emphasized phrase strongly suggests that in 1984 Congress believed it necessary and proper for § 666 to reach" }, { "docid": "22354893", "title": "", "text": "projects. The county received slightly more than $200,000 in total federal revenue-sharing funds, of which roughly 15% was allocated to Westmore-land’s district. Westmoreland contended that “the federal revenue sharing funds received [by her district] ... were segregated and not expended for the types of purchases she made.” She therefore argued that the bribery “concerned only state monies and did not fall within the purview of the statute.” We rejected such a construction as contrary to the statute’s text: Despite Westmoreland’s protestations, we find the relevant statutory language plain and unambiguous. By the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds[.]” Westmoreland also made the argument that Lipscomb makes here: “[A]n expansive interpretation [of § 666] ... extends federal power in a manner that, in many instances, the federal interest at stake does not warrant.” The Westmoreland panel responded: Once Congress has spoken, however, we do not sit to judge the wisdom of its action. It is sufficient that Congress seeks to preserve the integrity of federal funds by assuring the integrity of the organizations or agencies that receive them.... [T]he direct involvement of federal funds in a transaction is not an essential element of bribery under section 666(b); the government need not prove that federal monies funded a corrupt transaction. Westmoreland thus held that no connection was required between the federal funds allocated to the county and the supervisor’s illegal conduct. Instead, the only requisite involvement of federal funds was the county’s receipt of more than $10,000 per year. Since Westmoreland, we have sometimes applied its broad reading of" }, { "docid": "129502", "title": "", "text": "insurance, or other form of Federal assistance. The district court observed, and the government agrees, that the following elements comprise a violation of § 666(a)(1)(B): 1) corrupt solicitation; 2) of anything of value; 3) with the intention of being influenced in connection with any transaction of a local government or organization receiving at least $10,000 in federal funds annually; 4) where the transaction involves anything of value of $5,000 or more. The government argues that it has proven each element of a § 666 violation. Under the government’s theory, the defendants corruptly solicited political services and loyalty from municipal employees and did so intending to be influenced in the distribution of municipal jobs. Guttenberg annually receives more than $10,000 in federal funds and the jobs were worth more than $5,000 per year. Following the jury’s guilty verdict, the district court ruled that “[vjiewed in the light most favorable to the government, the evidence at the close of the government’s case revealed an implied promise by the defendants that the employees would be allowed to retain their jobs or might be reinstated if the employees gave political loyalty and services to the defendants’ party.” Slip. op. at 16. Nevertheless, the district court entered a judgment of acquittal for two reasons. First, the district court believed that Congress did not intend § 666 to apply to the defendants’ actions. Second, the district court found that the government’s interpretation of the statute was unconstitutionally vague and deprived the defendants of fair notice. Because we agree that § 666 does not apply to this case, we do not reach the constitutional issues raised in the district court’s opinion. IV. The Supreme Court has instructed that “when assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids.” Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985). A. The Text of § 666 We begin by acknowledging that a solicitation of specific election day services with municipal" }, { "docid": "5862967", "title": "", "text": "involved something valued at $5,000 or more.”). . Other circuits have split over whether subsection (c)’s exception applies to the transactional element of a § 666 bribery charge. Compare United States v. Robinson, 663 F.3d 265, 270, 272 (7th Cir.2011) (holding that § 666(c) does not \"preclude[] the government's use of salary evidence to establish the transactional element” of § 666(a)(1)(B) offense), and United States v. Marmolejo, 89 F.3d 1185, 1190 n. 5 (5th Cir.1996) (noting that § 666(c)'s exception “refers to the alleged wrongdoing, ... not to the nature of the benefit that the agency receives pursuant to the Federal program”), aff'd on other grounds sub nom. Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), with Mills, 140 F.3d at 633 (holding that subsection (c)'s exception applies to the transactional element of a § 666 bribery offense). Although we hold that § 666(c) covers the whole statute, we express no opinion about how the exception applies to the transactional element in subsections (a)(1)(B) and (a)(2). . Given the dearth of legislative history, we must be extra cautious in drawing inferences about congressional intent. That said, even if this comment permits an inference that Congress intended the exception to cover only certain parts of § 666, our conclusion that plain meaning renders subsection (c) applicable to the whole statute would remain unscathed. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1205 (11th Cir.2007) (concluding that “it is error to cloud the plain meaning of a statutory provision with contrary legislative history”). . The district court concluded that § 666(c) does not apply to § 666(b) and thus did not except the witness advocate's salary from the federal funds Brooks County received. While the district court's interpretation of § 666(c) was error, this error was harmless because, like the district court, we conclude that the witness advocate’s salary is not excepted for purposes of § 666(b). . Specifically, § 1512(b)(3) makes it a crime for anyone to \"engage[] in misleading conduct toward another person, with intent to ... hinder, delay, or prevent the communication" }, { "docid": "22354896", "title": "", "text": "State of Texas, in return for a federal per diem fee, housed in a state prison renovated with federal funds. In addressing whether § 666 gave jurisdiction to prosecute, we noted that “[w]e have previously held that § 666(a)(1)(B) does not require the government to prove that federal funds were directly involved in a bribery transaction, or that the federal monies funded the corrupt transaction.” Nevertheless, when discussing whether conjugal visits were “anything of value” under § 666, we stated that [b]ecause the conduct in this case involves serious acts of bribery by agents of a local government who were carrying out their duties under a Federal program, we conclude that this case is within the scope of conduct Congress intended to encompass with 18 U.S.C. § 666. We did not identify whence we derived any limits on the “scope of conduct Congress intended to encompass.” The dissent argued that Westmoreland interpreted § 666 to reach “only those acts of bribery that could somehow be traced, directly or indirectly, to the integrity of federal program funds.” The Supreme Court granted certiorari to address this argument and affirmed the panel majority’s holding, but beclouded our § 666 jurisprudence in the process. C. The Salinas Speculation and Its Se-quellae: The Funds Focus, Requiring a Further Nexus In reviewing Mannolejo, under the caption Salinas v. United States, the Supreme Court asked whether § 666 is “limited to eases in which the bribe has a demonstrated effect upon federal funds.” The Court stated that “[t]he statute’s plain language fails to provide any basis” for such a limitation and that the legislative history forecloses it. The Court thus agreed with our Mannolejo holding that federal funds need not be directly involved in a violation of § 666. The Court none theless obliquely suggested that there might be obstacles to applying § 666 to different facts: We need not consider whether the statute requires some other kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe was related to the housing of a prisoner in facilities paid for" }, { "docid": "22355084", "title": "", "text": "a relationship between the prohibited conduct and a federal interest, because doing otherwise would raise constitutional problems: Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected the government’s position that no connection between the bribery and the federal funds was necessary beyond proof that the agency in question had received federal funds in excess of $10,000. To do otherwise, the court reasoned, would eviscerate significant federal-state boundaries by turning § 666 into a general anti-corruption statute, an intention not expressed by Congress. Id. at 686. In the pre-Salinas case of United States v. Foley, 73 F.3d 484, 493 (2d Cir.1996), the court held that the conduct prosecuted under § 666 must be “shown in some way to touch upon federal funds.” The court also held that the local government or agency whose transaction involves $5,000 or more and at which the corruption is aimed must itself receive at least $10,000 in federal funds. Id. The court re-evaluated Foley post-Salinas in United States v. Santopietro, 166 F.3d 88 (2d Cir.1999), recognizing that Salinas had made plain that the corruption need not have a value of $5,000 to the local government on which the corruption is practiced. Instead, there only must be the receipt of at least $10,000 of federal funds and a corrupt transaction valued at $5,000 or more by any of the parties' — the local government, the party paying the bribe, or the bribe recipient. Thus, the Santopietro court reversed and held that the" }, { "docid": "3316728", "title": "", "text": "105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). Where the statute is ambiguous, we look to the legislative history and the underlying public policy of the statute. See United States v. Simmonds, 111 F.3d 737, 742 (10th Cir.1997). The Anti-Bribery Act, 18 U.S.C. § 666, prohibits the unlawful acceptance of anything of value of $5,000 or more if the person taking the bribe is an agent of an organization subject to the statute. Whether an organization falls within the scope of the statute is determined pursuant to the limits of section 666(b), which reads: The circumstances referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U.S.C. § 666(b). The district court acknowledged the superficial appeal of the government’s contention that the plain language of section 666(b) includes the patient assignments to BVMG. See LaHue, 998 F.Supp. at 1187. The scope of section 666(b) jurisdiction reaches any organization that “receives ... benefits” from a federal program in an amount over $10,000. 18 U.S.C. § 666(b). Medicare is indisputably a federal program and BVMG did receive reimbursements in any one year in excess of $10,000 for its physicians’ services to Medicare recipients. In support of this argument, the government offers an analogy to anti-discrimination statutes, contending that “section 666 ‘expressly equates “benefits” with “Federal assistance.’”” Br. of Aplt. at 15 (quoting United States v. Rooney, 986 F.2d 31, 34 (2d Cir.1993)). The government then directs us to cases holding that providers who accept Medicare funds receive “federal assistance” under an anti-discrimination statute. Id. at 16 (citing United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042-48 (5th Cir.1984)). The government concludes by analogy that a health care provider who accepts Medicare funds thereby receives federal benefits and accordingly falls within the scope of section 666. We are not persuaded by the analogy to anti-discrimination statutes, which are civil rather than criminal. We must exercise particular restraint" }, { "docid": "7750506", "title": "", "text": "connection between the bribe and the federal funds only after finding the statute to be ambiguous and then turning to the legislative history to resolve that ambiguity. Foley, 73 F.3d at 489. Despite the long-standing principle of statutory construction that the title of a statute cannot control the plain language of the statute, the Third Circuit reasoned that the title of § 666, “Theft or bribery-concerning programs receiving Federal funds,” implied that the statute contains a minimal nexus requirement. Zwick, 199 F.3d at 682. It avoided the “literal interpretation” of the statute and instead relied upon legislative history to construct a “plausible, albeit more contextual ] alternative” reading. Id. at 683. It reasoned that “Salinas found § 666(a)(1)(B) clear and unambiguous only on the question of whether the government must prove that the corrupt activity had a demonstrated effect on federal funds or programming,” id. at 682 n. 7, but that “nothing in Salinas prevented it] from determining that § 666(a)(1)(B) is ambiguous on the issue of whether there is a federal connection requirement,” id. We respectfully disagree with the proposition that § 666 is ambiguous on the federal connection requirement. As with any question of statutory construction, we look first to the text of the statute itself. United States v. McIntosh, 236 F.3d 968, 971 (8th Cir.), cert. denied, 632 U.S. 1022, 121 S.Ct. 1964, 149 L.Ed.2d 759 (2001). Section 666(a)(2) makes it a crime to “corruptly give[], offer[], or agree[ ] to give anything of value to any person, with intent to influence or reward an agent of a[ ] ... local ... government, ... or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more” if the “organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance or other form of Federal assistance.” 18 U.S.C. § 666 (emphasis added). The plain language encompasses the activity of local agents wherever subsection (b) attains. There" }, { "docid": "4198651", "title": "", "text": "820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), illustrates the illogie of the majority’s analysis in using the bribe to satisfy both the “anything of value” element of the crime and the “value of the transaction” element. There, a county supervisor accepted bribes totaling $2,202 in connection with the purchase of $14,482.92 worth of goods for the county. Id. at 575. The purchases made by the county supervisor constituted the series of transactions of the county “involving anything of value of $5,000 or more”;. the bribes satisfied the “anything of value” element of the crime. In short, as applied in this case, the language of § 666(a)(1)(B) is at best ambiguous insofar as it concerns the method of valuing a transaction. (2) Given this ambiguity, it is necessary to turn to the legislative history for guidance in interpreting and applying the statute. Hightower v. Texas Hospital Association, 65 F.3d 443, 448 (1995). Faced with legislative history that does not support its reading of the statute, however, the majority evades grappling directly with the legislative history. Instead, the majority falls back on general ized descriptions of that legislative history from our decision in Westmoreland. The majority states that its broad reading of the language of the statute “squares with Congress’s intent in enacting 18 U.S.C. § 666 to safeguard ‘the integrity of federal funds by assuring the integrity of the organizations or agencies that receive them.’ ” Maj.Op., at 1192 (quoting 841 F.2d at 578). The majority also states that “Congress ‘east a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.’ ” Id. at 1192 (quoting 841 F.2d at 577). Unfortunately, the majority quotes from Westmoreland without reviewing the context of the legislative history in which those descriptions arose. Such a review demonstrates the majority’s inappropriate use of these descriptions to support its overly-broad reading of the reach of the statute. In Westmoreland, a county supervisor was convicted of receiving kickbacks for purchases of county materials that involved only non-federal funds of the county. 841 F.2d at 573. The defendant argued that" }, { "docid": "7750509", "title": "", "text": "applies to all offense conduct involving anything of value of $5000 or more that involves “any” agency business, transaction, or series of transactions so long as the relevant agency received the requisite amount of federal benefits ($10,000) within the defined time period as required in § 666(b). The argument that § 666 is unambiguous as to the narrow question answered in Salinas but ambiguous as to the broad question presented here is unpersuasive. “A statute can be unambiguous without addressing every interpretive theory offered .... It need only be plain to anyone reading the Act that the statute encompasses the conduct at issue.” Salinas, 522 U.S. at 60, 118 S.Ct. 469 (internal quotation omitted). Thus, while it is true that the Salinas Court held only that the government need not prove that the offense conduct directly affected federal funds, the Salinas Court’s characterization of the operative terms of the statute as broad and unqualified supports our conclusion that the statute is also unambiguous as to the broader question presented here. See Salinas, 522 U.S. at 56,118 S.Ct. 469 (stating that “[t]he enactment’s expansive, unqualified language” does not support a limiting interpretation of the statute), 57 (“The prohibition is not confined to a business or transaction which affects federal funds.”), 57 (“Furthermore, the broad definition of the ‘circumstances’ to which the statute applies provides no textual basis for limiting the reach of the bribery prohibition.”), 57 (“The statute applies to all cases in which an ‘organization, government, or agency’ receives the statutory amount of benefits under a federal program.”), 57 (“The statute’s plain language fails to provide any basis for limiting § 666(a)(1)(B) to bribes affecting federal funds.”). The Court reaffirmed this broad reading of § 666 in Fischer v. United States, 529 U.S. 667, 120 S.Ct. 1780, 146 L.Ed.2d 707 (2000). There, the court described § 666 as “expansive, both as to the conduct forbidden and the entities covered.” Id. at 678, 120 S.Ct. 1780 (internal quotations and alteration omitted). The fact that the Salinas Court construed § 666(a)(1)(B) and that this case involves § 666(a)(2) makes no difference in" }, { "docid": "22355028", "title": "", "text": "Our first step in the analytical two-step is to satisfy ourselves of our jurisdiction over this case. Lipscomb argues that we do not have subject matter jurisdiction, because his actions do not fall within those governed by § 666. He argues that jurisdiction under § 666 does not extend to cases of local bribery such as his, where the underlying conduct does not directly involve federal funds. A detailed review of Fifth Circuit and Supreme Court precedent demonstrates that his argument fails as a matter of statutory construction. (A) Early Fifth Circuit Precedent We first interpreted § 666 in United States v. Westmoreland. There, the defendant was a county supervisor convicted of accepting bribes in purchases of materials for the county’s highway construction projects. The district court found that the federal funds received by the county were not spent by Westmoreland, and nonetheless convicted her under § 666. Westmoreland argued on appeal that her bribery did not fall under the jurisdiction of § 666, because it did not concern federal funds. We rejected this argument, concluding through statutory interpretation that federal funds need not be traceable to the “tainted transactions” in order for those transactions to be punishable under the statute: [W]e find the relevant statutory language plain and unambiguous. By the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) [emphasis added]. Subsection (b) contains nothing to indicate. that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. We next reviewed the jurisdictional reach of § 666 in United States v. Moeller., There, the government appealed the dismissal of § 666" }, { "docid": "2305604", "title": "", "text": "agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. Westmoreland, 841 F.2d at 576 (emphasis added). Other circuits have followed this approach and have established that the government is not required under § 666 to trace the flow of federal funds and assistance to any particular project, such as the airport concession programs. See United States v. Bonito, 57 F.3d 167, 172-73 (2d Cir.1995) (rejecting argument that there must be a link between the corrupt transaction and the protection of federal funds), cert. denied, - U.S. -, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996); Coyne, 4 F.3d at 108-09 (stating that the plain language of § 666 “neither explicitly nor implicitly requires that the $10,000 be directly linked to the program that was the subject of the bribe”); United States v. Si-mas, 937 F.2d 459 (9th Cir.1991) (“The broad language of [§ 666] does not require a tracing of federal funds to the project affected by the bribe.”). Furthermore, the plain language of the statute merely requires that the payments be made to an agent of the State which “receives benefits in excess of $10,000 in any one year period.” Because the language in the statute is clear, it would be improper to look to the legislative history for clarification. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992). We find the cases cited by defendants to be distin guishable or inapplicable. Accordingly, we decline the invitation to include the suggested \"connection to federal funds\"" }, { "docid": "23421319", "title": "", "text": "the government’s contention that an indictment or information charges an offense, for purposes of Rule 12(b)(2) [later super-ceded by Rule 12(b)(3)(B)], as long as it recites in general terms the essential elements of the offense, even if the specific facts alleged in the charging instrument fail to satisfy those elements.”). An indictment fails to state an offense if the specific facts alleged in it “fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.” Id. 1. Statutory Interpretation of § 666 When interpreting a federal criminal statute, “we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope” of the forbidden conduct. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). Any ambiguity in the language of a criminal statute should be resolved in favor of the defendant. United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). However, “§ 666 is extremely broad in scope,” United States v. Sotomayor-Vazquez, 249 F.3d 1, 8 (1st Cir.2001) (citing Salinas v. United States, 522 U.S. 52, 55-61, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997)), as that statute seeks to ensure the integrity of vast quantities of federal funds previously unprotected due to a “serious gap in the law,” United States v. Cicco, 938 F.2d 441, 445 (3d Cir.1991) (quoting the legislative history of § 666). See also United States v. Rooney, 37 F.3d 847, 851 (2d Cir.1994) (citing the legislative history of § 666 and concluding that “Congress intended the terms of the statute to be ‘construed broadly’ ”). Section 666 prohibits, inter alia, “an agent” of a local government agency that receives more than $10,000 in federal funds from stealing from that agency property valued at more than $5,000. The term “agent” is defined as “a person au thorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.” 18 U.S.C. § 666(d)(1). The Vitillo defendants" }, { "docid": "4198633", "title": "", "text": "another criminal statute, 18 U.S.C. § 601, which was \" 'directed at protecting federally-funded employment from partisan favoritism,' ” the court concluded that Congress did not intend to encompass such behavior under § 666. Id. The Cicco court was persuaded in particular by the fact that if the conduct at issue was covered by § 666 as well as § 601, the punishment would have been ten times as severe under § 666, and without any mention of § 601 in the legislative histoiy, the Cicco court was not prepared to conclude that Congress intended such a result. Id. Instead, the court believed \"Congress intended § 666 to address different and more serious criminal activity\" involving theft and bribery. Id. . Compare Westmoreland, 841 F.2d at 576-78 (stating that the unambiguous language of § 666(a)(1)(B) does not require the government to establish any relation between the transaction involving a \"thing of value of $5,000” and the federal funds the agency receives) with United States v. Foley, 73 F.3d 484, 490 (2d Cir.1996) (stating that § 666(a)(1)(B) was enacted to permit prosecution for bribery in connection with federal program funds, therefore, in determining whether a transaction involves \"anything of value of $5,000 or more,” the \"value must be connected, even if only indirectly, to the integrity of federal program funds”). The dissent claims that Foley holds that \"the proper method to value a transaction is from the perspective of the protected entity.\" However, Foley's only statement about assessing the “thing’s value” states that it must be connected to the integrity of the federal program funds. Foley, 73 F.3d at 490. Foley does intimate that if the transaction involved in that case had affected the financial interests of the protected local organization, then that case might have been properly prosecuted under § 666(a)(1)(B). Id. at 492-93. However, the only decisive language in Foley concerns the fact that the federal program funds were not affected, even indirectly, by the transaction. Id. at 490, 492 & 493. We note that the defendant in West-moreland could not have been convicted under § 666(a)(1)(B) under the" }, { "docid": "2305603", "title": "", "text": "corrupt transactions at issue affected only private or local monies, their conduct was not intended to be covered under § 666. In addition to legislative history, the defendants cite authority from other jurisdictions that purport to apply this restriction to crimes under § 666. See United States v. Wyncoop, 11 F.3d 119 (9th Cir.1993); United States v. Coyne, 4 F.3d 100 (2d Cir.1993), cert. denied, 510 U.S. 1095, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); United States v. Cicco, 938 F.2d 441 (3d Cir.1991); and United States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). The government claims, however, that “[e]very court to have considered this issue has rejected defendant’s argument attempting to limit the scope of the statute.” Further, it argues that Westmoreland actually supports its position. We agree. First, in construing § 666, we agree with the following expression of the Fifth Circuit: [W]e find the relevant statutory language plain and unambiguous. By the terms of § 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. Westmoreland, 841 F.2d at 576 (emphasis added). Other circuits have followed this approach and have established that the government is not required under § 666 to trace the flow of federal funds and assistance to any particular project, such as the airport concession programs. See United States v. Bonito, 57 F.3d 167, 172-73 (2d Cir.1995) (rejecting argument that there must be a link between the corrupt transaction and the" }, { "docid": "22393055", "title": "", "text": "a constitutional question.” Id., at 57, n. 9 (internal quotation marks omitted). Gregory itself held as much when it noted the principle it articulated did not apply when a statute was unambiguous. See 501 U. S., at 467. A statute can be unambiguous without addressing every interpretive theory offered by a party. It need only be “plain to anyone reading the Act” that the statute encompasses the conduct at issue. Ibid. Compare United States v. Bass, 404 U. S. 386, 349-350 (1971) (relying on Congress’ failure to make a clear statement of its intention to alter the federal-state balance to construe an ambiguous firearm-possession statute to apply only to firearms affecting commerce), with United States v. Lopez, 514 U. S. 549, 561-562 (1995) (refusing to apply Bass to read a similar limitation into an unambiguous firearm-possession statute). The plain-statement and McNally does not warrant a departure from the statute’s terms. The text of § 666(a)(1)(B) is unambiguous on the point under consideration here, and it does not require the Government to prove federal funds were involved in the bribery transaction. Furthermore, there is no serious tutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(1)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds. See Westfall v. United States, 274 U. S. 256, 259 (1927). In so holding, we do not address § 666(a)(1)(B)’s applicability to intangible benefits such as contact visits, because that question is not fairly included within the questions on which we granted certiorari. See Yee v. Escondido, 503 U. S. 519, 533 (1992). Nor do we review the Court of Appeals’ determination that the transactions at issue “involved] any thing of value of $5,000 or more,” since Salinas does not offer any cognizable challenge to that" }, { "docid": "22355029", "title": "", "text": "concluding through statutory interpretation that federal funds need not be traceable to the “tainted transactions” in order for those transactions to be punishable under the statute: [W]e find the relevant statutory language plain and unambiguous. By the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) [emphasis added]. Subsection (b) contains nothing to indicate. that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. We next reviewed the jurisdictional reach of § 666 in United States v. Moeller., There, the government appealed the dismissal of § 666 claims against employees of the Texas Federal Inspection Service, state workers empowered to conduct federal inspections. We held that jurisdiction under § 666 extended to the employees’ actions, because the Texas Department of Agriculture, a “government agency” within § 666, received more than $10,000 a year in federal funds; and the defendants were “agents” of that federally-funded agency for purposes of § 666. In United States v. Marmolejo, we upheld the conviction of a sheriff who accepted bribes in return for permitting conjugal visits to a federal prisoner whom Texas, in return for a fee from the federal government, housed in a facility constructed with federal funds. In holding that these actions came under the jurisdiction of § 666, we referenced our earlier statutory decisions: “[w]e have previously held that § 666(a)(1)(B) does not require the government to prove that federal funds were directly involved in a bribery transaction, or that the federal monies funded the corrupt transaction.” We went on to conclude that conjugal visits are “anything of value” under the statute. The dissent" }, { "docid": "22354892", "title": "", "text": "focuses of the statute. One, which another court has dubbed the “funds focus,” would concentrate on deterring direct depletion of federal funds; the other, the so-called “corruption focus,” would combat “the corrupting, public-trust eroding effects of bribery” and would not require that federal funds be depleted or misallocated as a direct result of the bribe. Lipscomb’s proposal that we adopt the narrower, funds focus, however, would require us to ignore our consistently broad interpretation of § 666 as targeting corruption qua corruption. Furthermore, even if we were to read § 666 and our cases to construe it narrowly, to superimpose a nexus element, we would still conclude that there is a sufficient linkage between Lipscomb’s conduct and federal funds to support jurisdiction of Lipscomb’s case. B. Westmoreland and Its Progeny: The Corruption Focus — No Further Nexus Required We first interpreted § 666 in United States v. Westmoreland. The defendant, Westmoreland, was a county supervisor who was convicted of accepting bribes and kickbacks in connection with the purchasing of supplies for the county’s highway construction projects. The county received slightly more than $200,000 in total federal revenue-sharing funds, of which roughly 15% was allocated to Westmore-land’s district. Westmoreland contended that “the federal revenue sharing funds received [by her district] ... were segregated and not expended for the types of purchases she made.” She therefore argued that the bribery “concerned only state monies and did not fall within the purview of the statute.” We rejected such a construction as contrary to the statute’s text: Despite Westmoreland’s protestations, we find the relevant statutory language plain and unambiguous. By the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving" }, { "docid": "22355085", "title": "", "text": "666 into a general anti-corruption statute, an intention not expressed by Congress. Id. at 686. In the pre-Salinas case of United States v. Foley, 73 F.3d 484, 493 (2d Cir.1996), the court held that the conduct prosecuted under § 666 must be “shown in some way to touch upon federal funds.” The court also held that the local government or agency whose transaction involves $5,000 or more and at which the corruption is aimed must itself receive at least $10,000 in federal funds. Id. The court re-evaluated Foley post-Salinas in United States v. Santopietro, 166 F.3d 88 (2d Cir.1999), recognizing that Salinas had made plain that the corruption need not have a value of $5,000 to the local government on which the corruption is practiced. Instead, there only must be the receipt of at least $10,000 of federal funds and a corrupt transaction valued at $5,000 or more by any of the parties' — the local government, the party paying the bribe, or the bribe recipient. Thus, the Santopietro court reversed and held that the defendants could be convicted under § 666. Even though the bribery at issue did not result in a loss of $5,000 or more to the town, the statutory requirement that a transaction of at least $5,000 be involved was plainly satisfied by the fact that the total bribe was $25,000. Id. at 92-93. Santopietro, however, did not retreat from Foley's, requirement of “at least some connection between the bribe and a risk to the integrity of the federal funded [sic] program,” because “nothing in Salinas disturbs such a requirement.” Id. at 93. The court held that a federal connection sufficient to satisfy § 666 existed where real estate developers had made corrupt payments to the mayor, the Republican town chairman, and the president of the board of aldermen to secure their influence in landing city development contracts that were substantially funded by HUD dollars. Id. The court held that the evidence satisfies the requirements of Foley, undisturbed by Salinas, that the transaction sought to be influenced had some connection with a federal program. Indeed, Salinas" }, { "docid": "3316729", "title": "", "text": "of section 666(b) jurisdiction reaches any organization that “receives ... benefits” from a federal program in an amount over $10,000. 18 U.S.C. § 666(b). Medicare is indisputably a federal program and BVMG did receive reimbursements in any one year in excess of $10,000 for its physicians’ services to Medicare recipients. In support of this argument, the government offers an analogy to anti-discrimination statutes, contending that “section 666 ‘expressly equates “benefits” with “Federal assistance.’”” Br. of Aplt. at 15 (quoting United States v. Rooney, 986 F.2d 31, 34 (2d Cir.1993)). The government then directs us to cases holding that providers who accept Medicare funds receive “federal assistance” under an anti-discrimination statute. Id. at 16 (citing United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042-48 (5th Cir.1984)). The government concludes by analogy that a health care provider who accepts Medicare funds thereby receives federal benefits and accordingly falls within the scope of section 666. We are not persuaded by the analogy to anti-discrimination statutes, which are civil rather than criminal. We must exercise particular restraint in interpreting federal criminal statutes. Dowling, 473 U.S. at 214, 105 S.Ct. 3127. Moreover, there are inherent policy differences between these criminal and civil statutes. Section 666 was designed to prevent diversions of federal funds enroute to their intended beneficiaries, whereas the anti-discrimination statutes were enacted to prevent the use of federal funds to support discrimination. See United States v. Wyncoop, 11 F.3d 119, 123 (9th Cir.1993) (Title IX anti-discrimination provision different in purpose and language from section 666). Finally, like the district court, we believe that a closer look at the government’s position reveals ambiguity in the plain meaning of section 666. Under the government’s interpretation of section 666(b), any organization that is assigned $10,000 in a year in funds initially disbursed under a federal program source would fall within the statute. Thus, when funds have passed to the beneficiary and she assigns the funds further to any number of organizations which may assign them even further, the government’s theory suggests that these monies are all considered benefits as long as they originated under" } ]

[ { "docid": "22594876", "title": "", "text": "by Executive Order 12,356. The district court found that the FBI had sustained its burden of proof in this respect through the Declaration of FBI Supervisory Special Agent Sherry L. Davis (Dec. 16, 1994) (Davis Declaration). On its face, the Davis Declaration appears to fall into that category of documents well-known to FOIA litigation as a Vaughn affidavit. Before discussing the Davis Declaration, it will be helpful to review briefly the history and purpose of such affidavits. 1. Vaughn v. Rosen In Vaughn v. Rosen, the District of Columbia Circuit Court of Appeals conceived of the document now known as the Vaughn affidavit as a means of overcoming the institutional difficulties inherent in FOIA litigation. 484 F.2d 820 (D.C.Cir.1973). Specifically, the court observed that de novo review of nondisclosure in an adversarial tribunal could be “seriously distorted]” by the fact that the party seeking disclosure suffers from a lack of knowledge, relative to the agency, as to the precise contents of the documents in question. Id. at 824-25. In addition, the court acknowledged the institutional incentives that might encourage an agency to withhold as much information as possible and to claim the broadest possible exemptions under FOIA, thereby shifting the burden to the courts to sort through a seemingly endless “morass of material.” Id. at 826. To correct the adversarial imbalance of information, and to permit more effective factual review, Vaughn held that an agency could meet its burden in FOIA litigation only by submitting documentation that met the following two requirements: First, the documentation must include “a relatively detailed analysis [of the withheld material] in manageable segments” without resort to “conclusory and generalized allegations of exemptions.” Id. Second, the documentation must also provide “an indexing system [that] would subdivide the [withheld] document under consideration into manageable parts cross-referenced to the relevant portion of the Government’s justification.” Id. at 827; see also Ray v. Turner, 587 F.2d 1187, 1191-92 (D.C.Cir.1978) (discussing Vaughn). Over the years, as the Vaughn standard was adopted by other courts, its articulation was refined. See generally Davin v. United States Dep’t of Justice, 60 F.3d 1043" } ]

[ { "docid": "10818782", "title": "", "text": "with our own in camera review of the withheld documents, the Court agrees that DHS cannot reasonably segregate any of the factual statements in the ATS documents because such statements are so “inextricably intertwined” with the documents’ purpose of evaluating and “identifying potentially high-risk travelers” that disclosing any of this information risks revealing the nature of the exempt portions of the documents. In other words, to the extent that any purely factual information is contained in the withheld documents, it was proper for DHS not to disclose such information because doing so would implicitly suggest that such factors played a role in CBP’s analysis. Cf. As-sadi 2013 WL 230126, at *5 (after reviewing withheld documents in camera, concluding that none of the “purely factual material” could be disclosed because “disclosure would shed light on an otherwise exempt evaluation process”); Ahmed, 2013 WL 27697, at *6 (“To the extent there is any purely factual or otherwise non-exempt material in these documents, the Court finds that such material is inextricably intertwined with exempt material, such that disclosure would compromise the confidentiality of protected information.”) (internal quotation marks and citation omitted). Accordingly, because DHS could not have reasonably segregated and produced any non-exempt information, the Court finds that DHS properly relied on Exemption 7(E) in withholding the two ATS documents in their entirety. IV. CONCLUSION For the foregoing reasons, DHS’s motion for summary judgment (Docket # 16) is granted, and plaintiffs’ motion for summary judgment (Docket # 19) is denied. The Clerk is requested to enter judgment dismissing the complaint. SO ORDERED. . See Notice of Motion for Summary Judgment, filed Apr. 21, 2014 (Docket # 16); Memorandum of Law in Support of the Defendant’s Motion for Summary Judgment, filed Apr. 21, 2014 (Docket #17) (\"DHS Mem.”); Declaration of Laurence E. Castelli, filed Apr. 21, 2014 (Docket # 18) (\"Castelli Decl.”); Plaintiffs' Cross-Motion for Summary Judgment, filed May 12, 2014 (Docket # 19); Plaintiffs’ Memorandum of Law in Support of Their Cross-Motion for Summary Judgment And in Opposition to Defendant's Motion for Summary Judgment, filed May 12, 2014 (Docket #20) (\"PL Mem.”); Declaration" }, { "docid": "3898340", "title": "", "text": "information that the agency has publicly disclosed”, Mehl v. Envtl. Prot. Agency, 797 F.Supp. 43, 46 (D.D.C.1992); and “when the dispute turns on the contents of the documents, and not the parties’ interpretations of those documents.” Spirko, 147 F.3d at 996 (quoting Quinon, 86 F.3d at 1228). Ultimately, however, courts disfavor in camera inspection and it is more appropriate in only the exceptional case. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (explaining that FOIA’s in camera review provision “is designed to be invoked when the issue before the District Court could not otherwise be resolved”); PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 252-53 (D.C.Cir.1993) (noting that in camera review is “generally disfavored” but permissible); Animal Legal Def. Fund, Inc. v. Dep’t of Air Force, 44 F.Supp.2d 295, 304 (D.D.C.1999) (observing that, “in camera review should not be resorted to as a matter of course”) (quoting Quinon, 86 F.3d at 1228). The court concludes that in camera review is not necessary at this stage in the proceedings. The defendants’ descriptions and justifications for many of their withholdings are adequate. The court permits the defendants an opportunity to first correct those that are not adequate by submitting a revised Vaughn index consistent with this memorandum opinion. If the defendants’ revised Vaughn index still does not meet the statutory requirements, the plaintiff may renew its request for in camera inspection. IV. CONCLUSION For the foregoing reasons, the court grants in part and denies in part the defendants’ motion for summary judgment, denies the plaintiffs request for in camera inspection of documents, and orders defendants DHS and TSA to submit a revised Vaughn index with respect to the specified withholdings. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 25th day of July, 2005. . A Vaughn index is a document that describes withheld or redacted documents and explains why each withheld record is exempt from disclosure. Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973). . The Federal Bureau of Investigation" }, { "docid": "15057910", "title": "", "text": "what material it is redacting from the particular documents, and may not only refer to a generalized justification for redaction. See, e.g., Defenders of Wildlife v. United States Border Patrol, 623 F.Supp.2d at 89-90. Cf. James Madison Project v. CIA, 607 F.Supp.2d 109, 125 (D.D.C.2009) (finding an agency’s withholding under the low 2 exemption adequate, because the agency’s declaration detailed the information withheld “document-by-document” and did not rely on “vague references”). In most cases, DHS fails to do so, and the context of the redaction is not clear from the Vaughn Index. See, e.g., Vaughn Index at Doc. No. 391 (“exemption b(2) being applied to a portion of the form”); Doc. No. 395 (same). These explanations are simply insufficient for the Court to determine what type of information was redacted, much less whether the information is claimed to be exempt under the low 2 or high 2 exemption. Accordingly, they are inadequate to meet DHS’s burden. See Robinson v. Attorney General, 534 F.Supp.2d 72, 80 (D.D.C.2008) (finding agency declaration which did not indicate clearly whether material was withheld as low 2 or high 2 exempt material inadequate). DHS’s justifications for its with-holdings under the high 2 exemption also frequently are deficient. To be protected by the high 2 exemption, information must be predominantly internal and disclosure must significantly risk circumvention of agency regulations or statutes. See Long v. Dep’t of Justice, 450 F.Supp.2d at 54 (citing Schiller v. NLRB, 964 F.2d at 1207). Plaintiff focuses on several documents withheld by DHS in full which have titles such as “Internal Coversheet” (Doc. No. 392) and “Memorandum of Investigation” (Doc. Nos. 442 and 555). Defendant provides no explanation for withholding these documents other than by reference to its general justification for all documents withheld under Exemption 2. See Vaughn Index at Doc. No. 383. This explanation is not specific to the contents of the withheld documents. Even if the Court were to conclude that the titles of the documents are adequate to show that the documents are primarily internal, the government must still prove that disclosure may risk circumvention of agency regulation." }, { "docid": "22389443", "title": "", "text": "to Dismiss or, in the Alternative, for Summary Judgment (\"Def. Mot.”); Plaintiff's Cross-Motion for Summary Judgment (\"PL Mot.”); Defendants’ Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (\"Def. Rep.”); Plaintiff's Reply in Support of Cross-Motion for Summary Judgment (\"Pl. Rep.”); and DHS's Amended Vaughn Index (\"Vaughn Index”) and its accompanying declarations. . Plaintiff also submitted FOIA requests to the Department of the Interior, the National Park Service, the United States Fish and Wildlife Service, and the United States Forest Service. Initially, it also challenged the sufficiency of those agencies' responses in its complaint. Over the course of the litigation, however, plaintiff has determined that its claims against those agencies have been satisfied and are no longer at issue. See Pl. Reply at 1. Its claims against the Department of Homeland Security, the United States Border Patrol, and the Bureau of Customs and Border Protection remain viable. Id. . Resolution of this matter turns on the sufficiency of DHS's Vaughn Index and accompanying declarations. Accordingly, the Court will treat defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as one for summary judgment. See Fed. R. Civ. P. 12(d). . Plaintiff does not challenge DHS’s reliance on exemptions 6 and 7(C) to redact individuals' names or its reliance on exemption 2 to withhold information such as telephone numbers, email addresses, fax numbers and other document numbers. See PL Mot. at 2 n. 1. . Exemption 7(E) exempts “records or information compiled for law enforcement purposes [that] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. 552(b)(7)(E). See, e.g., Long v. Dep’t of Justice, 450 F.Supp.2d at 79. . Exemption 5 excludes from disclosure \"inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This" }, { "docid": "10818783", "title": "", "text": "would compromise the confidentiality of protected information.”) (internal quotation marks and citation omitted). Accordingly, because DHS could not have reasonably segregated and produced any non-exempt information, the Court finds that DHS properly relied on Exemption 7(E) in withholding the two ATS documents in their entirety. IV. CONCLUSION For the foregoing reasons, DHS’s motion for summary judgment (Docket # 16) is granted, and plaintiffs’ motion for summary judgment (Docket # 19) is denied. The Clerk is requested to enter judgment dismissing the complaint. SO ORDERED. . See Notice of Motion for Summary Judgment, filed Apr. 21, 2014 (Docket # 16); Memorandum of Law in Support of the Defendant’s Motion for Summary Judgment, filed Apr. 21, 2014 (Docket #17) (\"DHS Mem.”); Declaration of Laurence E. Castelli, filed Apr. 21, 2014 (Docket # 18) (\"Castelli Decl.”); Plaintiffs' Cross-Motion for Summary Judgment, filed May 12, 2014 (Docket # 19); Plaintiffs’ Memorandum of Law in Support of Their Cross-Motion for Summary Judgment And in Opposition to Defendant's Motion for Summary Judgment, filed May 12, 2014 (Docket #20) (\"PL Mem.”); Declaration of David E. McCraw in Support of Plaintiffs’ Cross-Motion for Summary Judgment And in Opposition to Defendant’s Motion for Summary Judgment, filed May 12, 2014 (Docket #21) (\"McCraw Decl.”); Reply Memorandum in Further Support of the Defendant's Motion for Summary Judgment, filed June 2, 2014 (Docket # 22) (\"DHS Reply”); Supplemental Declaration of Laurence E. Castelli, filed June 2, 2014 (Docket # 23) (\"Supp. Castelli Deck”); Reply Memorandum of Law in Further Support of Plaintiffs’ Cross-Motion for Summary Judgment And in Opposition to Defendant’s Motion for Summary Judgment, filed June 12, 2014 (Docket # 24) (\"PL Reply”). Among DHS’s submissions is a \"Vaughn Index” which \"includes an explanation of the FOIA exemptions claimed for the contested records.” Castelli Decl. ¶ 15; see DHS Vaughn Index (annexed as Ex. A to Castelli Decl.) (\"Vaughn Index”). See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n. 2, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (A Vaughn Index “usually consists of a detailed affidavit, the purpose" }, { "docid": "7929089", "title": "", "text": "harm of disclosure to an investigative target. Id. at ¶¶ 8, 11, 12, 13, 14. Under Exemption 7(A), a court may take into account a requestor’s identity. See Robbins Tire & Rubber, 437 U.S. at 239-40, 98 S.Ct. at 2325-26; Grasso v. I.R.S., 785 F.2d 70, 76-77 (3d Cir.1986). In light of the Plaintiffs identity as a murder suspect and the nature of the information sought, the Court is satisfied that Defendants have adequately explained how the release of information contained in the investigatory files would interfere with pending enforcement proceedings. Accordingly, the Court will GRANT the Defendants’ Motion for Summary Judgment with regard to their assertion of Exemption 7(A) to justify the withholding of the requested information contained in files 94HQD6-6,969 and 94HQD26-13,861. III. PLAINTIFF’S MOTION FOR YAUGHN INDEX On February 6, 1995, Plaintiff filed a Motion under the Vaughn decision to require detailed indexing of the documents Defendants claim are exempt from disclosure. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Defendants in their response to this Court’s March 9, 1995 Order submitted that the Batten Declaration satisfied their Vaughn obligation. Def. Response at n. 1. Under Vaughn, agencies are required to prepare an itemized index that couples a withheld document or portion of document with a specific FOIA Exemption, and that justifies the application of the Exemption. Vaughn v. Rosen, 484 F.2d at 820. The Court finds the information contained in the Batten Declaration is “sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientolo gy v. Bell, 603 F.2d 945, 949 (D.C.Cir.1979). The Batten Declaration provides as much information as possible without revealing the substance for which the Defendants are claiming Exemptions. See Vaughn, 484 F.2d at 826-7. Accordingly, the Plaintiffs Motion Under Vaughn shall be, and hereby is, DENIED. IV. CONCLUSION Upon consideration of the pleadings before the Court, and for all of the foregoing reasons, the Court finds that Defendants are entitled to judgment in their favor as a matter of law" }, { "docid": "22389424", "title": "", "text": "or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992). FOIA cases typically and appropriately are decided on motions for summary judgment. Bigwood v. United States Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007); Farrugia v. Executive Office for United States Attorneys, Civil Action No. 04-0294, 2006 WL 335771 at *3 (D.D.C. Feb. 14, 2006). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are “relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001); Hertzberg v. Veneman, 273 F.Supp.2d at 74. III. DISCUSSION DHS has produced 602 pages of records responsive to plaintiffs FOIA request in full, has withheld 853 pages of potentially responsive records in full, has withheld 189 pages of potentially responsive records in part, and has referred 255 pages of potentially responsive records to other agencies. See Vaughn Index, Declaration of Magda S. Ortiz (“Ortiz Decl.”) ¶ 6. Plaintiff challenges the adequacy of this production on several grounds, summarizing its complaints as follows: The Vaughn index is legally insufficient, and the agencies have not carried then-burden to justify withholdings" }, { "docid": "5729895", "title": "", "text": "the reviewing court [and the plaintiff] a reasonable basis to evaluate the claim of privilege.’ ” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C.Cir.2006), quoting Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C.Cir.1994); see Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973) (discussing purpose of indexing and itemizing responsive records); Span v. U.S. Dep’t of Justice, 696 F.Supp.2d 113, 121 (D.D.C.201Ó) (“An agency’s explanation for withholding information under FOIA exemptions must meet two requirements. First, it must ‘specifically identify[] the reasons why a particular exemption is relevant,’ and second, it must ‘correlate] those claims with the particular part of a withheld document to which they apply.’”), quoting Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). Furthermore, the agency’s showing must be sufficient to enable the Court to make a finding about segregability. See Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1028 (D.C.Cir.1999) (placing an “affirmative duty” on the district court to address record segregability). Upon reviewing the defendants’ supporting memorandum, statement of material facts, and declarations supplied by HHS, EOUSA and NRC, the Court finds the declarants’ descriptions of the withheld information too sweeping and vague to permit an assessment of the asserted exemptions. Therefore, summary judgment is denied without prejudice to reconsideration upon defendants’ filing of Vaughn indexes or some equivalent documents that would reasonably describe the records at issue and explain with specificity how the claimed exemptions apply to the withheld material. Consequently, the Court will defer consideration of plaintiffs challenge to HHS’s search for responsive records. See PL’s Opp’g Facts ¶ 6. 2. DHS Records (i) USCIS’s Withholdings USCIS, as the custodian of DHS’s Alien Files, produced a considerable volume of material, but withheld some information under FOIA exemptions, 3, 5, 6, 7(C), and 7(E). Defs.’ Mem. at 32; see Welsh Decl., Vaughn Index [Dkt. # 39-7, EOF pp. 25- ■ 64]. a.) FOIA Exemption S Exemption 3 authorizes the government to withhold information that is “specifically exempted from disclosure by statute” so long as (1) the statute “requires that the" }, { "docid": "20208009", "title": "", "text": "burden. Instead, the agency must only demonstrate that each withholding, “draft or otherwise,” was genuinely part of the agency’s deliberative process. The Court is satisfied with the descriptions provided in the Vaughn indices that each of these withholdings meets this requirement and finds that these withholdings were proper pursuant to exemption 5. Finally, EPIC’s assertion that DHS failed to produce segregable portions of the withheld documents also fails. See Pl.’s Opp’n 19-20. “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir. 2007). According to the Vaughn indices provided by the agency, many of the contested withholdings under exemption 5 were partial redactions from specific pages, rather than complete withholdings of entire documents. See Vaughn Index 13-14, 17-19. Moreover, the agency has twice made supplemental release of documents after determining that further segregable material could be released and has declared in a sworn affidavit that it has released the segregable portion of each of these records. Sotoudeh Decl. ¶¶ 22-23, 72. As EPIC has failed to offer any argument in support of its allegation that might cast doubt on DHS’s sworn statement, the Court finds that all reasonably segregable materials were disclosed. VII. ATTORNEYS’ FEES AND COSTS EPIC has moved for attorneys’ fees and costs. Pl.’s Opp’n 20-24. The Court will not address that motion here. Pursuant to the local rules, the Court shall “enter an order directing the parties to confer and to attempt to reach agreement on fee issues” and shall set a status conference at which the Court will (1) determine whether settlement of any and or all aspects of the fee matter has been reached, (2) enter judgment for any fee on which agreement has been reached, (3) make the determination [regarding pending appeals] required by paragraph (b) of ... [LCvR 54.2], and (4) set an appropriate schedule for completion of the fee litigation. LCvR 54.2. VIII. CONCLUSION For the foregoing reasons, EPIC and DHS are both entitled to partial summary judgment. An Order shall issue with this opinion." }, { "docid": "3898315", "title": "", "text": "court concludes that the DOJ’s search was reasonable and because the plaintiff has raised no positive indications of overlooked materials, the court holds that the FBI’s search in response to the plaintiffs FOIA request was adequate. C. DHS and TSA Withholdings Pursuant to the FOIA Exemptions The defendants withheld documents and portions of documents pursuant to FOIA Exemptions 2, 3, 4, 5, 6, 7(A) and 7(C). Defs.’ Mot., Statement of Material Facts ¶ 20-26. A court cannot grant summary judgment unless the defendant’s Vaughn index provides a detailed description of the withheld information, the exemption claimed for withholding the information, and the reasons supporting the application of the exemption to the withheld material. Vaughn, 484 F.2d at 827. Agency statements in the Vaughn index cannot support summary judgment if they are “conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Oglesby, 79 F.3d at 1176. Additionally, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent. Inc., v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). This requirement is known as the segregability requirement. Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C.Cir.1992). Finally, if the defendants have withheld information on the basis of multiple exemptions, the court need only rely on one exemption for each piece of exempted material. Ranter v. Dep’t of State, 479 F.Supp. 921, 928 n. 9 (D.D.C.1979). 1. Exemption 2 Withholdings Exemption 2 of FOIA allows the withholding of records that are “related solely to the internal personnel rules and practices of the agency.” 5 U.S.C. § 552(b)(2). The defendants’ Vaughn index, read in conjunction with the Withnell Declaration, demonstrates that redacted portions of the documents are properly withheld under Exemption 2 because the information would allow access to an otherwise secure database and internal agency telephone numbers and access codes. See Defs.’ Mot., Vaughn index (“Vaughn index”) at 18; Withnell Decl. ¶ 36, Ex. R. Additionally, the plaintiff does not challenge the defendants’ Exemption 2 withholdings. Pl.’s Opp’n at 13. The court therefore grants the defendants’ summary judgment motion with" }, { "docid": "20207979", "title": "", "text": "Vaughn index, in camera review, or a combination of these tools. A Vaughn index correlates each withheld document, or portion thereof, with a particular FOIA exemption and the justification for nondisclosure. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). While agency affidavits are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), they must “provide[] a relatively detailed justification, specifically identifying] the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Judicial Watch v. FDA, 449 F.3d at 146; see also COMPTEL, 910 F.Supp.2d at 111, 2012 WL 6604528 at *4. III. EPIC HAS CONCEDED THE ADEQUACY OF DHS’S SEARCH FOR RESPONSIVE DOCUMENTS AND HAS AGREED NOT TO CONTEST ITS WITHHOLDINGS PURSUANT TO EXEMPTION 6 DHS has moved for summary judgment as to the adequacy of its search for responsive documents, Def.’s Br. 10-11, and the appropriateness of all its withholdings. See Def.’s Br. 11-34. EPIC does not contest the adequacy of DHS’s search or any of its withholdings pursuant to exemption 6. See Pl.’s Opp’n. In addition, EPIC apparently agreed not to contest any of these exemption 6 withholdings. See E-mail from John Verdi to Jesse Grauman, Aug. 5, 2011, Ex. 9, ECF No. 9-9. Accordingly, the Court takes these issues as conceded and grants summary judgment to DHS as to all withholdings made under exemption 6. IV. DHS IS ENTITLED TO SUMMARY JUDGMENT AS TO ITS EXEMPTION 3 WITHHOLDINGS Both parties move for summary judgment as to withholdings made by DHS pursuant to exemption 3. DHS is entitled to summary judgment as to these with-holdings. Exemption 3 permits the nondisclosure of materials that are “specifically exempted from disclosure by statute” so long as that statute “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). Congress amended exemption 3, adding language requiring “particular criteria for withholding” in order “to overrule legislatively the Supreme Court’s decision in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d" }, { "docid": "10818784", "title": "", "text": "of David E. McCraw in Support of Plaintiffs’ Cross-Motion for Summary Judgment And in Opposition to Defendant’s Motion for Summary Judgment, filed May 12, 2014 (Docket #21) (\"McCraw Decl.”); Reply Memorandum in Further Support of the Defendant's Motion for Summary Judgment, filed June 2, 2014 (Docket # 22) (\"DHS Reply”); Supplemental Declaration of Laurence E. Castelli, filed June 2, 2014 (Docket # 23) (\"Supp. Castelli Deck”); Reply Memorandum of Law in Further Support of Plaintiffs’ Cross-Motion for Summary Judgment And in Opposition to Defendant’s Motion for Summary Judgment, filed June 12, 2014 (Docket # 24) (\"PL Reply”). Among DHS’s submissions is a \"Vaughn Index” which \"includes an explanation of the FOIA exemptions claimed for the contested records.” Castelli Decl. ¶ 15; see DHS Vaughn Index (annexed as Ex. A to Castelli Decl.) (\"Vaughn Index”). See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n. 2, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (A Vaughn Index “usually consists of a detailed affidavit, the purpose of which is to permit the court system effectively and efficiently to evaluate the factual nature of disputed information.”) (internal quotation marks and citation omitted). . The bulk of the \"Inspection Remarks” section has not been redacted. For example, in one of these records, the unredacted portion of this section states: \"PAX is reporter for NY Times traveling to Hatay Turkey and then on to Syria and finally to Iraq.” Red. Doc. at CBP 0092. . Even if we were to conclude that releasing the RSLT information would result in the disclosure of a \"guideline” rather than a \"technique or procedure,” we would still reach the same result inasmuch as DHS has shown how such a disclosure \"could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). As the Court in Bloomer explained: Courts have set \"a relatively low bar for the agency to justify withholding” information under Exemption 7(E). Blackwell v. FBI, 646 F.3d 37, 42 (D.C.Cir.2011). The exemption allows for withholding information \"not just for circumvention of the law," }, { "docid": "1371594", "title": "", "text": "MEMORANDUM OPINION REGGIE B. WALTON, United States District Judge The plaintiff, Electronic Privacy Information Center, submitted a request to the defendant; Customs and Border Protection, a component of the Department of Homeland Security (“DHS”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), seeking documents relating to the defendant’s Analytical Framework for Intelligence (“AFI”) sys-tern. Complaint (“Compl.”) ¶ 2. The defendant has produced, in whole or in part, some documents in response to the FOIA request, and withheld certain other records pursuant to Exemption 7(E) of the FOIA, 5 U.S.C. § 552(b)(7)(E). See Joint Status Report at 2, ECF No. 13 (Feb. 27, 2015). The Court. previously denied the defendant’s initial motion for summary judgment, but granted in part and denied in part the plaintiffs motion, and in so •doing, ordered the government to provide a more detailed Vaughn index supporting its reliance on Exemption 7(E). See Elec. Privacy Info. Ctr. v. Customs & Border Prot., 160 F.Supp.3d 354, 360-61 (D.D.C. 2016) (Walton, J). The parties’ renewed cross-motions for summary judgment are currently pending before the Court. See Defendant’s Consolidated Reply and Opposition to Plaintiffs Cross-Motion for Summary Judgment (“Def.’s Mot.”) ; Plaintiffs Combined Opposition to Defendant’s Motion for Summary Judgment and Cross-Motion for Summary Judgment (“Pl.’s Mot.”). Upon careful consideration of the parties’ submissions, the Court concludes that it must-deny the plaintiffs motion and grant the defendant’s motion. I. BACKGROUND The Court previously set forth the relevant background of this case, see 160 F.Supp.3d at 356-57, which is unnecessary to revisit for the purpose of resolving the motions now pending resolution. Following the Court’s resolution of the parties’ first round of summary judgment motions, the defendant submitted a revised declaration and Vaughn index, see Supp. Burroughs Decl. ¶ 4 (“The purpose of this declaration and the attached Vaughn [i]n-dex is to provide additional information as to why certain information was withheld from public disclosure pursuant to [Exemption 7(E) ] in response to this Court’s order from February 17, 2016 .... ”), pursuant to which the defendant continues to withhold 269 pages of documents in whole or" }, { "docid": "3898341", "title": "", "text": "stage in the proceedings. The defendants’ descriptions and justifications for many of their withholdings are adequate. The court permits the defendants an opportunity to first correct those that are not adequate by submitting a revised Vaughn index consistent with this memorandum opinion. If the defendants’ revised Vaughn index still does not meet the statutory requirements, the plaintiff may renew its request for in camera inspection. IV. CONCLUSION For the foregoing reasons, the court grants in part and denies in part the defendants’ motion for summary judgment, denies the plaintiffs request for in camera inspection of documents, and orders defendants DHS and TSA to submit a revised Vaughn index with respect to the specified withholdings. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 25th day of July, 2005. . A Vaughn index is a document that describes withheld or redacted documents and explains why each withheld record is exempt from disclosure. Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973). . The Federal Bureau of Investigation (\"FBI”) is a part of the Department of Justice (\"DOJ”). See Am. Civil Liberties Union of Northern Cal. v. Dep’t of Justice, 2005 WL 588354, at *3 (N.D.Cal. Mar 11, 2005). . Indeed, the plaintiff has not offered evidence that documents were created and maintained by the FBI; it merely infers their existence based on the statements of airline executives and a newspaper article. When the description of the defendant's search is sufficiently detailed, a claim that certain documents \"must exist” is insufficient to raise a material question of fact with respect to the adequacy of the agency’s search. Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 n. 13 (D.C.Cir.1990) (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986)). . David M. Hardy's declaration was not notarized, although it was subscribed to as true under penalty of perjury. A federal statute specifically permits use of unsworn declarations in all cases in which affidavits would otherwise be required. 28 U.S.C. § 1746; Judicial Watch v. Clinton, 880 F.Supp. 1, 11 n. 6 (D.D.C.1995). ." }, { "docid": "9068179", "title": "", "text": "records set forth in the Vaughn index and the agency's declaration that it released all segregable information.\"); Canning v. U.S. Dep't of State , 134 F.Supp.3d 490, 517-18 (D.D.C. 2015) (same). Specifically, the FBI averred that \"[d]uring the processing of plaintiff's request, each responsive page was individually examined to identify non-exempt information that could be reasonably segregated from exempt information for release\" and that \"[t]he FBI conducted a page-by-page, line-by-line review of all responsive information.\" Second Hardy Decl. ¶ 10. Similarly, the CBP stated that its officials \"conducted a line-by-line review of the records determined to be responsive, to identify information exempt from disclosure or for which a discretionary waiver of exemption could apply,\" and that they were \"satisfied that all reasonably segregable portions of the relevant record have been released to the Plaintiff.\" Burroughs Decl. ¶ 52. The plaintiff offers no reason to rebut the \"presumption that [the agencies] complied with the obligation to disclose reasonably segregable material.\" Sussman, 494 F.3d at 1117. Thus, based on the FBI's and the CBP's supporting declarations, the agencies have adequately specified \"which portions of the document[s] are disclosable and which are allegedly exempt.\" Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). IV. CONCLUSION For the foregoing reasons, the defendants' Second Motion for Summary Judgment is GRANTED and the plaintiffs Second Cross-Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion. The plaintiff also submitted FOIA requests to the Office of the Director of National Intelligence (\"ODNI\"), U.S. Citizenship and Immigration Services (\"USCIS\"), U.S. Immigration and Customs Enforcement (\"ICE\"), and the Transportation Security Administration (\"TSA\"), but those agencies were previously granted summary judgment. See Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index (\"Summ. J. Order\") at 6, ECF No. 22 (K.B. Jackson, J.). The parties filed multiple exhibits and declarations in connection with the pending cross-motions; each exhibit and submission from the parties has been reviewed, but only those exhibits necessary to provide context for resolution of the instant motion are cited herein. The plaintiff does not deny that \"windows in her" }, { "docid": "4045848", "title": "", "text": "been properly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be resorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where “the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a last resort in national security situations like this case — a court should not resort to it routinely on the theory that it can’t hurt.” ACLU v. Dep’t of Def, 628 F.3d 612, 626 (D.C. Cir. 2011). The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index. As discussed, Plaintiff has failed to overcome the good faith presumption to which they are entitled. Hamdan, 797 F.3d at 770. IY. CONCLUSION For the foregoing reasons, the Court finds that Defendant is entitled to summary judgment on Plaintiffs FOIA claim. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED in its entirety, and Plaintiffs Motion for Summary Judgment is DENIED. The clerk is directed to enter judgment in favor of Defendant and close the file. IT IS SO ORDERED. . The FBI also redacted material under FOIA exemptions 6 and 7(C) and withheld duplicate documents. Gov’t MSJ at 2 n.1. Plaintiff does not challenge those withholdings. Id.: see generally FPF MSJ. . Plaintiff points to four pages from a partially redacted email thread from February 2015 that it suggests are not deliberative since they contain solicitations from an FBI employee to OGC seeking advice on agency procedure. FPF MSJ at 22. But Defendant stated that these pages were also withheld as exempt under the attorney-client privilege. Vaughn Index at 5. The Court discusses this exemption below in Section III.D.iii.a." }, { "docid": "20208008", "title": "", "text": "withheld in full, consists of “discussions between agency personnel regarding how to respond to an inquiry from a foreign government concerning AIT radiation safety.” TES Vaughn Index 729-40. 13. FDA Testing: This document, withheld in full, “is a preliminary progress report, resulting from an interagency agreement between DHS and FDA, by the FDA concerning the testing of the effects of the L3 Provision on personal medical devices.” TSL Vaughn Index WHIF L. The report “reflects an interim report prior to the completion of testing of the effects of the L3 Provision on medical devices.” Id. As a preliminary matter, the first of these withholdings, TSA Vaughn Index 26-27, was withheld pursuant to both the deliberative process privilege and the attorney client privilege, but EPIC challenges only the former. Accordingly, DHS is entitled to summary judgment as to this withholding. As to the remaining documents, EPIC’s sole argument with respect to these with-holdings is that DHS failed to indicate a corresponding “final” document that would justify withholding these “drafts.” As discussed above, this overstates the agency’s burden. Instead, the agency must only demonstrate that each withholding, “draft or otherwise,” was genuinely part of the agency’s deliberative process. The Court is satisfied with the descriptions provided in the Vaughn indices that each of these withholdings meets this requirement and finds that these withholdings were proper pursuant to exemption 5. Finally, EPIC’s assertion that DHS failed to produce segregable portions of the withheld documents also fails. See Pl.’s Opp’n 19-20. “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir. 2007). According to the Vaughn indices provided by the agency, many of the contested withholdings under exemption 5 were partial redactions from specific pages, rather than complete withholdings of entire documents. See Vaughn Index 13-14, 17-19. Moreover, the agency has twice made supplemental release of documents after determining that further segregable material could be released and has declared in a sworn affidavit that it has released the segregable portion of each of these records. Sotoudeh Decl." }, { "docid": "9068181", "title": "", "text": "host family's neighborhood had reportedly been taped up prior to the incident.\" Pl.'s Reply at 1 n.1. Although these circumstances may have raised questions for an inquisitive journalist-for example, why the windows were taped up or whether the host expected a violent confrontation-the record does not reflect that the plaintiff expressed any concern about these unusual preparations. On March 31, 2017, summary judgment was granted to the defendants, as conceded, with respect to \"(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI's withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA.\" Summ. J. Order at 6 (K.B. Jackson, J.). TECS was previously the abbreviation for the Treasury Enforcement Communication System. See Pineiro Decl. ¶ 34 n.2. After the creation of DHS and the migration of CBP systems to DHS, the system is now known simply as \"TECS\" and is no longer an abbreviation. Id. This case was reassigned to the undersigned Judge on October 24, 2017. \"The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.\" McKenzie v. Sawyer , 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). \"A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.\" Prison Legal News v. Samuels , 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015). After the FBI produced, on September 22, 2017, six additional pages documenting its decision to close the investigation into the plaintiff, see Fourth Hardy Decl. ¶ 4, the plaintiff advised the FBI that \"she intend[ed] to challenge the FBI's withholding of attorney work product\" on one of the six new pages. Defs.' Reply at 10. The plaintiff later abandoned this argument. See Pl.'s Reply at 3 n.6. The plaintiff requests in camera review of the three pages at issue to determine whether" }, { "docid": "22389425", "title": "", "text": "484 F.2d 820, 826-27 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001); Hertzberg v. Veneman, 273 F.Supp.2d at 74. III. DISCUSSION DHS has produced 602 pages of records responsive to plaintiffs FOIA request in full, has withheld 853 pages of potentially responsive records in full, has withheld 189 pages of potentially responsive records in part, and has referred 255 pages of potentially responsive records to other agencies. See Vaughn Index, Declaration of Magda S. Ortiz (“Ortiz Decl.”) ¶ 6. Plaintiff challenges the adequacy of this production on several grounds, summarizing its complaints as follows: The Vaughn index is legally insufficient, and the agencies have not carried then-burden to justify withholdings under exemption 5’s deliberative process privilege and exemption 7(E). The agencies have additionally failed to segregate releasable information. Finally, DHS has not demonstrated that searches have been conducted and records provided for all DHS agencies, and the searches that have been conducted were not reasonable. PI. Mot. at 2. The Court agrees with plaintiff that DHS’s Vaughn Index and the accompanying declarations are legally insufficient — the Court is unable to determine whether DHS’s claimed exemptions are valid, whether it has met its burden to reasonably segregate information for release, and whether the agencies involved have conducted adequate searches for responsive records. A The Vaughn Index Under the FOIA, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b); see also Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). The agency bears the burden of justifying any withholding. See Bigwood v. United States Agency for Int’l" }, { "docid": "9068180", "title": "", "text": "agencies have adequately specified \"which portions of the document[s] are disclosable and which are allegedly exempt.\" Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). IV. CONCLUSION For the foregoing reasons, the defendants' Second Motion for Summary Judgment is GRANTED and the plaintiffs Second Cross-Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion. The plaintiff also submitted FOIA requests to the Office of the Director of National Intelligence (\"ODNI\"), U.S. Citizenship and Immigration Services (\"USCIS\"), U.S. Immigration and Customs Enforcement (\"ICE\"), and the Transportation Security Administration (\"TSA\"), but those agencies were previously granted summary judgment. See Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index (\"Summ. J. Order\") at 6, ECF No. 22 (K.B. Jackson, J.). The parties filed multiple exhibits and declarations in connection with the pending cross-motions; each exhibit and submission from the parties has been reviewed, but only those exhibits necessary to provide context for resolution of the instant motion are cited herein. The plaintiff does not deny that \"windows in her host family's neighborhood had reportedly been taped up prior to the incident.\" Pl.'s Reply at 1 n.1. Although these circumstances may have raised questions for an inquisitive journalist-for example, why the windows were taped up or whether the host expected a violent confrontation-the record does not reflect that the plaintiff expressed any concern about these unusual preparations. On March 31, 2017, summary judgment was granted to the defendants, as conceded, with respect to \"(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI's withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA.\" Summ. J. Order at 6 (K.B. Jackson, J.). TECS was previously the abbreviation for the Treasury Enforcement Communication System. See Pineiro Decl. ¶ 34 n.2. After the creation of DHS and the migration of CBP systems to DHS, the system is now known simply as \"TECS\" and is no longer an abbreviation. Id. This case was reassigned to the undersigned Judge on October" } ]

[ { "docid": "6254986", "title": "", "text": "ORDER The Opinion filed March 25, 2002 is amended to include docket number 00-70189, which was inadvertently omitted from the opinion caption. The mandate shall issue forthwith in docket number 00-70189. OPINION REINHARDT, Circuit Judge. The National Labor Relations Act (“NLRA” or “the Act”), as amended, establishes an elaborate and complicated structure that governs labor relations in almost all of the industries within the nation’s private sector. Collective bargaining is the central concern of that structure, and labor unions are essential to the collective bargaining process. The Act contains a union security provision, § 8(a)(3), that helps secure the role of unions in the collective bargaining process by permitting unions and employers to enter into agreements requiring employees to become union members. It is the interpretation of that provision that is at issue in this case. The union intervenors, United Food and Commercial Workers Union Locals 7 and 951, serve as the exclusive bargaining representatives for the employees of several retail food companies. Collective bargaining agreements (“CBAs”) negotiated between the employers and the unions govern the terms and conditions of the employees’ employment. The National Labor Relations Act, as amended, requires that an exclusive bargaining representative must represent all employees in a bargaining unit — union members and non-members alike — when bargaining for wages, benefits, and working conditions, and when resolving grievances with the employer. 29 U.S.C. § 158(b)(2)-(3). The NLRA also permits the exclusive bargaining representative and the employer to require that all employees become dues-paying “members” of the union. NLRA § 8(a)(3). Thus all persons in the bargaining unit receive the benefits and share the economic costs of union representation. Were “free riders” able to obtain the fall benefits of the union’s efforts without paying their share of the costs, union membership would likely be drastically reduced and the collective bargaining system seriously undermined. Communications Workers of America v. Beck, 487 U.S. 735, 743, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988) The Supreme Court held, in NLRB v. General Motors, 373 U.S. 734, 743, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), that § 8(a)(3)’s “membership” requirement can" } ]

[ { "docid": "2118174", "title": "", "text": "to the employee need not, at that stage, be in such detail as to provide all available data and information on the anticipated assessment. To impose such a requirement would result in circulation of a document as long and complicated as an SEC prospectus. Gilpin, 875 F.2d at 1316. The test of adequacy of the initial explanation to be provided by the union is not whether the information supplied is sufficient to enable the employee to determine in any final sense whether the union’s proposed fee is a correct one, but only whether the information is sufficient to enable the employee to decide whether to object. If the employee objects, then the union will be called upon to demonstrate more completely its justification for the fee, because “[t]he burden of proof in establishing the charges validly chargeable ... rests on defendant unions.” Beck v. Communications Workers of America, 776 F.2d 1187, 1209 (4th Cir.1985) (citing Brotherhood of Ry. & Steamship Clerks v. Allen, 373 U.S. 113, 122, 83 S.Ct. 1158, 1163, 10 L.Ed.2d 235 (1963)), aff'd on rehearing en banc, 800 F.2d 1280 (4th Cir.1986), aff'd, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Thus, in its initial explanation to nonunion employees, the union must break its expenses into major descriptive categories and disclose those categories or portions thereof which it is including in the fee to be charged. Hudson also requires that the financial data be verified by an independent auditor. The verification requirement compels the union to have an independent auditor determine whether the amounts claimed by the union for chargeable activities are true. The appellants’ plea that we also require the auditor to review the Union’s initial position taken in attributing expenses to be charged is tantamount to requiring the auditor to give a second legal opinion on whether categories were properly related to collective bargaining. This would require legal interpretations of several complex Supreme Court decisions by persons not professionally qualified to give them and might not advance the knowledge of the nonunion employees. To the contrary, it might only confuse the issues. The" }, { "docid": "21070688", "title": "", "text": "payers at 73% of dues for the period from April 1999 to June 2000. Any fee payer who had objected to any of the notices from April 1999 to May 2000 then received a refund of the nonchargeable amount of the fee, with interest, retroactive to April 1999. In May 2001, the district court ruled on cross-motions for summary judgment. Finding that all notices except the May 2000 notice were deficient under Hudson, the district court ordered the Union to refund the nonchargeablfe portion of the fee to all fee payers, including those who did not object to any of the notices. The court granted the Union’s motion for summary judgment on the plaintiffs’ challenge to two expenditures charged to fee payers. The'court also rejected the plaintiffs’ request for a permanent injunction and found they lacked standing to challenge an indemnification clause in the CBAs. Plaintiffs sought more than $200,000 in attorneys’ fees and costs. Because the plaintiffs were only partially successful in their litigation, the court reduced the number of hours for which they reasonably could recover. The court ultimately awarded only about $67,000 in fees, but awarded nearly full costs of $32,711.03. This appeal and cross-appeal followed. I.. The June 1999 Hudson Notice A. The Union’s Appeal The Union appeals the district court’s determination that its first Hudson notice was deficient because it failed to include a copy -of the auditor’s report. The Union contends that the concerns of Hudson were satisfied by its notice, which included a detailed breakdown of expenses by category, informed the nonmembers that the figures had been audited, and offered to provide a copy of the report upon request. We review de novo the district court’s grant of summary judgment on the sufficiency of the Hudson notice. See Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 812(9th Cir.1997). We find that the Union’s 1999 notice did not satisfy the dictates of Hudson. Although it informed nonmembers that the figures in the notice were derived from an audited statement, it did not include any “independent verification” of this fact. Hudson did not" }, { "docid": "21070702", "title": "", "text": "nonchargeable portion is the minimum permitted by our caselaw. See Knight, 131 F.3d at 815; Prescott I, 177 F.3d at 1109. However, in neither Knight nor Prescott I did the union ever issue a corrected Hudson notice with a new opportunity for nonmembers to object, and thus they are inappo-site to this situation. We do, however, find it helpful to consider cases involving private-sector unions that must issue notices similar to those required by Hudson pursuant to Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). If a Beck notice is defective, the union must send a corrected notice, and issue retroactive refunds, with interest, to fee payers who object to the corrected notice. Rochester Mfg. Co., 323 N.L.R.B. 260, 262, 1997 WL 113885 (1997), aff'd mem. Cecil v. NLRB, 194 F.3d 1311 (6th Cir.1999), cert. denied, 529 U.S. 1066, 120 S.Ct. 1671, 146 L.Ed.2d 481 (2000); see also United Food & Commercial Workers Union, Local 1036 v. NLRB, 249 F.3d 1115, 1120 (9th Cir.2001), reinstated in pertinent part, 307 F.3d 760, 774 n. 21 (9th Cir.2002) (en banc) (remedy for improper “welcoming letter” was to send corrected letter to those who received defective notice; refunds should be made only to those who receive corrected notice and object). In this case, the district court found that the plaintiffs had no burden to object because the deductions were made “in the absence of a reasonably prompt notice that satisfied the requirements of Hudson.” It is true that a good deal of time elapsed between the initial paycheck deduction and the proper Hudson notice. But this does not mean the Union was intentionally dragging its feet. It issued a notice in June 1999 that it believed complied with Hudson,. Plaintiffs filed suit in November, contesting the adequacy of that notice. The Union issued two more notices in January 2000 in an attempt to comply with Hudson, even though the district court eventually found these lacking as well. The district court’s order even acknowledges that the Union had made good faith attempts to correct the notice" }, { "docid": "21070701", "title": "", "text": "‘dissent is not to be presumed’ ”) (quoting Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 774, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961)); see also Mitchell v. L.A. Unified Sch. Dist., 963 F.2d 258, 262-63 (9th Cir.1992) (rejecting argument that because only nonmembers were involved in suit, they should be presumed to object to paying full fair share fee). In this case, it is undisputed that the Union’s May 2000 notice complied with Hudson. If a nonmember objected to any of the notices between April 1999 and May 2000, the Union refunded the nonchargeable portion of the fee, with interest, retroactive to the first paycheck deduction. Accordingly, the Union argues that it was improper for the district court to order it to refund the nonchargeable portion to all class members, including those who did not affirmatively object to even the proper Hudson notice in May 2000. Plaintiffs contend that the Union cannot “unring the bell” by providing a correct notice thirteen months after it began deducting fees and that a refund of the nonchargeable portion is the minimum permitted by our caselaw. See Knight, 131 F.3d at 815; Prescott I, 177 F.3d at 1109. However, in neither Knight nor Prescott I did the union ever issue a corrected Hudson notice with a new opportunity for nonmembers to object, and thus they are inappo-site to this situation. We do, however, find it helpful to consider cases involving private-sector unions that must issue notices similar to those required by Hudson pursuant to Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). If a Beck notice is defective, the union must send a corrected notice, and issue retroactive refunds, with interest, to fee payers who object to the corrected notice. Rochester Mfg. Co., 323 N.L.R.B. 260, 262, 1997 WL 113885 (1997), aff'd mem. Cecil v. NLRB, 194 F.3d 1311 (6th Cir.1999), cert. denied, 529 U.S. 1066, 120 S.Ct. 1671, 146 L.Ed.2d 481 (2000); see also United Food & Commercial Workers Union, Local 1036 v. NLRB, 249 F.3d 1115, 1120 (9th Cir.2001), reinstated in pertinent" }, { "docid": "15909277", "title": "", "text": "Hudson. Robinson v. State of New Jersey, 741 F.2d 598, 612 n. 12 (3rd Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 366 (1985), and Beck v. Communications Workers of America, 776 F.2d 1187, 1213 (4th Cir.1985), reh’g en banc, 800 F.2d 1280 (4th Cir.1986), aff'd, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Both of these cases relied on the Supreme Court’s approval of interest-bearing escrow accounts in Ellis. After Hudson was decided, the Second Circuit approved a plan that provided an interest-bearing escrow account instead of an advance reduction. Andrews, 829 F.2d at 338, 339. The Court concludes that under the decisions in Beck and Andrews, the procedures used by the Union even in 1985 were proper. While it would have been arguably fair for the Union to escrow the actual dues reductions based on the fee charged by the Union in the previous year, the TCU in this case escrowed one and one-half times the nonchargeable amounts in 1985 and twice the amounts in 1986 and 1987. The amounts escrowed fairly and properly acted as a safeguard against the possibility of “temporary loans” by the objecting employees. Furthermore, Hudson did not overrule Ellis and hold that interest-bearing escrow accounts could not be used. The interest-bearing account satisfies the requirement that the Union not be given a loan, even temporarily, which may be used for non-collective bargaining purposes. Therefore, the Union’s escrow policies that were in place in the years 1985-87 and which were replaced by the total advance reduction system, did not violate the principles of Ellis and Hudson. Independent decision maker Plaintiffs contend that the TCU did not provide a reasonably prompt opportunity for them to challenge the amount of its fee before an impartial decision maker. See Hudson, 475 U.S. at 307-08, 106 S.Ct. at 1076. While plaintiffs are not in a position to challenge the promptness of any decision regarding disputed fees, since they did not elect at any time to go through the arbitration process, they do challenge the independence of the arbitrators who are selected pursuant to" }, { "docid": "21070687", "title": "", "text": "extend the time for fee payers to object. Still later in January 2000, the Union again tried to fulfill the plaintiffs’ demands and sent a new amended notice that cross-referenced both the June 1999 notice and the auditor’s report and extended the period for nonmembers to challenge the fee calculation. Although the district court noted that the Union had made a good faith effort to correct defects in the earlier notices and that the court itself may have caused the Union to use the “piecemeal” approach of correcting the defects, the court ultimately concluded that these notices still did not comply with Hudson because too much time had elapsed for the cross-references to be sufficient. Finally, in May 2000, the Union sent another “integrated” notice that included all the information from the previous notices, reopened the objection/challenge period, and accommodated an additional request by plaintiffs for an “allocation audit.” It is undisputed that this notice complied with Hudson. The Union’s calculation was then challenged through arbitration, and the arbitrator set the fee for objecting fee payers at 73% of dues for the period from April 1999 to June 2000. Any fee payer who had objected to any of the notices from April 1999 to May 2000 then received a refund of the nonchargeable amount of the fee, with interest, retroactive to April 1999. In May 2001, the district court ruled on cross-motions for summary judgment. Finding that all notices except the May 2000 notice were deficient under Hudson, the district court ordered the Union to refund the nonchargeablfe portion of the fee to all fee payers, including those who did not object to any of the notices. The court granted the Union’s motion for summary judgment on the plaintiffs’ challenge to two expenditures charged to fee payers. The'court also rejected the plaintiffs’ request for a permanent injunction and found they lacked standing to challenge an indemnification clause in the CBAs. Plaintiffs sought more than $200,000 in attorneys’ fees and costs. Because the plaintiffs were only partially successful in their litigation, the court reduced the number of hours for which they" }, { "docid": "9458425", "title": "", "text": "logic of Abood, which rested on constitutional grounds, to the statutory DFR context. The Beck Court concluded that § 8(a)(3) of the NLRA “authorizes the exaction of only those fees and dues necessary” for the union to perform its duties as the exclusive representative of employees on labor-management issues. 487 U.S. at 762-63, 108 S.Ct. 2641. Accordingly, the Court held that nonmembers may bring a claim for improperly charged agency fees as a breach of the duty of fair representation. See id. at 745, 108 S.Ct. 2641. Beck does not purport to enunciate procedures by which unions are to verify their calculations of the proportion of agency fees attributable to representational activities. This case is framed by the axes of Hudson and Beck. Hudson establishes the procedural grounds by which unions representing public employees must defend their apportionment of charges for representational and nonrepresentational activities. Beck establishes that private sector nonmember employees may bring an action, based on the union’s duty of fair representation, contesting the use of agency fees for nonrepresentational activities. Although Hudson involved constitutional concerns, this court has applied the basic protections of Hudson to the Becfc-defined DFR cases involving private sector employees. See Abrams v. Communications Workers, 59 F.3d 1373, 1379 n. 7 (D.C.Cir. 1995); see also Miller v. Air Line Pilots Ass’n, 108 F.3d 1415, 1424-25 (D.C.Cir.1997) (remanding for District Court to resolve factual dispute as to whether audit met Hudson’s requirements), aff'd on other grounds, 523 U.S. 866, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998). This court also has held that Beck objectors are entitled to the same procedural protections described in Hudson for challenging a union’s apportionment. See Ferriso v. NLRB, 125 F.3d 865, 869-70 (D.C.Cir.1997). None of these . cases, however, addressed the issue raised here: May a union use a local presumption to allocate between representational and nonrepresentational activities? Petitioners’ complaint rests on two principal arguments. First, petitioners contend that the use of a local presumption can never be squared with Hudson. Second, petitioners contend that the Union’s use of the local presumption in this case was factually unsupported. Respondent contends" }, { "docid": "5831385", "title": "", "text": "of the basis for the fee,” which “include[s] the major categories of expenses, as well as verification by an independent auditor.” Hudson, 475 U.S. at 307 n. 18, 310, 106 S.Ct. 1066. This explanation is called a “Hudson notice.” Second, unions must provide fee payers with “a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker.” Id. at 310, 106 S.Ct. 1066. Finally, unions must create “an escrow for the amounts reasonably in dispute while such challenges are pending.” Id. In this case, the unions failed to meet Hudson’s first requirement: provision of an adequate notice. The plaintiffs sued not only the union, but also the superintendents. The plaintiffs claimed, and the district court held, that the superintendents have a legal duty to ensure that the union complies with the Hudson notice requirement before deducting any agency fees. The superintendents appeal. II. STANDARD OF REVIEW We review a grant of summary judgment de novo. See Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). III. DISCUSSION The superintendents argue that, pursuant to Knight v. Kenai Peninsula Borough School District, 131 F.3d 807 (9th Cir.1997), cert. denied sub nom. Anchorage Education Association v. Patterson, 524 U.S. 904, 118 S.Ct. 2060, 141 L.Ed.2d 138 (1998), and Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232, a duty to evaluate the sufficiency of the union’s notice did not arise under the facts of this case. In Knight, this court determined that an employer may not be held hable for failing to examine a union’s deficient notice before the notice is sent to employees. See Knight, 131 F.3d at 817. Although the Knight court recognized that a school district has some duty to ensure that its employees receive proper notice, that duty only arises “at the time the union seeks to take action against a nonmember for failure to pay the agency fee.... ” Id. In other words, under Knight, “the school district cannot take adverse action against the nonmember employee without first ensuring that the nonmember’s constitutional rights were not violated by [the union].” Id." }, { "docid": "21070684", "title": "", "text": "OPINION MICHAEL DALY HAWKINS, Circuit Judge. It is settled law that a union may charge nonunion employees certain fees to pay for their “fair share” of the union’s cost of negotiating and administering a collective bargaining agreement. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). In Chicago Teachers Union v. Hudson, 475 U.S. 292, 310, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), the Supreme Court established certain safeguards in connection with the collection of such fees, including “an adequate explanation of the basis for the fee.” This appeal involves the adequacy of the June 1999 “Hudson notice” prepared by the California State Employees Association (the “Union”). The Union is the exclusive representative for nine bargaining units of California state employees. After several years without collective bargaining agreements (“CBAs”) in place, in March 1999, the Union entered into CBAs allowing the state employer to deduct “fair share” fees from plaintiffs’ paychecks and forward the funds to the Union. In April 1999, the Union sent a notice to nonmembers informing them of the “fair share” deductions. The state, through its controller (defendant Kathleen Connell), commenced making the deductions the same month. It is undisputed that the April notice was not intended to be a Hudson notice. In June 1999, the Union sent a second notice that purported to comply with Hudson. The notice set the “fair share” fee (95% of union dues) and provided an opportunity for the nonunion employees (also called “fee payers”) to object to paying for activities not germane to collective bargaining, automatically reducing the fee to 82% of union dues. This notice additionally explained how a fee payer could challenge the fee calculation by requesting arbitration. These procedures are not challenged here; rather, the dispute is over whether the notice included sufficient information for fee payers to decide to object and challenge the fee calculation. The June 1999 notice included a report on the Union’s 1998 expenditures and divided them into three categories: (1) those chargeable to fee payers, (2) those not chargeable to fee payers, and (3) those partially" }, { "docid": "21070700", "title": "", "text": "the full amount of fees it collected, Knight did not say the union could not receive any fees whatsoever. 177 F.3d at 1109. In support of its interpretation of Knight, Prescott I also pointed out that, instead of simply-ordering complete restitution, the court in Knight remanded, leaving “ ‘the measure of damages ... for the district court to determine in the first instance.’ ” Id. (quoting Knight, 131 F.3d at 815). The district court thus properly applied Prescott I and rejected the plaintiffs’ claim for full restitution. We agree with the Union, however, that the district court went too far in ordering partial restitution to all class members. Ordinarily, if there is a proper Hudson notice, the employee has the burden to object to paying the full nonmember fee, and only then is entitled to a refund of the nonchargeable portion of the fee. See Hudson, 475 U.S. at 306 n. 16, 106 S.Ct. 1066 (“The nonmember’s ‘burden’ is simply the obligation to make his objection known.”); Abood, 431 U.S. at 238, 97 S.Ct. 1782(“ ‘dissent is not to be presumed’ ”) (quoting Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 774, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961)); see also Mitchell v. L.A. Unified Sch. Dist., 963 F.2d 258, 262-63 (9th Cir.1992) (rejecting argument that because only nonmembers were involved in suit, they should be presumed to object to paying full fair share fee). In this case, it is undisputed that the Union’s May 2000 notice complied with Hudson. If a nonmember objected to any of the notices between April 1999 and May 2000, the Union refunded the nonchargeable portion of the fee, with interest, retroactive to the first paycheck deduction. Accordingly, the Union argues that it was improper for the district court to order it to refund the nonchargeable portion to all class members, including those who did not affirmatively object to even the proper Hudson notice in May 2000. Plaintiffs contend that the Union cannot “unring the bell” by providing a correct notice thirteen months after it began deducting fees and that a refund of the" }, { "docid": "4458482", "title": "", "text": "8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), a plaintiff who works in an agency shop may be required to pay only those fees “necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” Communications Workers of Am. v. Beck, 487 U.S. 735, 762-63, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Since White’s workplace was an agency shop, he was entitled under Beck to refrain from paying the portion of his union dues that the CWA did not intend to use for negotiating with management. In 1988, in order to comply with Beck, the CWA adopted a procedure (the “Opt>Out Procedure”) under which employees who work in agency shops and are represented by the CWA may notify the CWA during May of a given year that they intend to refrain from paying the portion of their compulsory dues that the CWA does not mean to use for labor-management negotiations. Employees availing themselves of the Opt-Out Procedure are not charged for this portion of the union dues for the period beginning in the July after notification and ending in the June of the following year. After a year, the CWA resumes charging the full amount of dues unless employees again opt out. The CWA informs Bell employees of the Opt-Out Procedure by placing a notice in its newsletter, the CWA News. The CWA publishes ten issues of the CWA News per year and inserts the notice in one such issue. At all relevant times, the CWA relied on information supplied by Bell to determine the addresses of the Bell employees whom it represented, and the CWA sent the CWA News to those addresses. It is undisputed that, between 1988 and 1997, Bell did not give the CWA White’s correct address. Consequently, White did not receive the CWA News until 1997. White began receiving the CWA News in 1997, he declined to read it because, according to White, “on their face, the CWA News magazines look[ed] like union propaganda newspapers, and there [was] no hint that notice of anything pertinent to a" }, { "docid": "15909287", "title": "", "text": "visits by Union officials to objecting employees, plaintiffs have not submitted any specifics beyond the general allegations in the pleadings to establish harassment. There are no exhibits, affidavits, or depositions indicating that any of the individual plaintiffs were threatened with reprisals or otherwise harassed. In the absence of such support, summary judgment will be entered in favor of the Union on this issue. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Specific categories of expenditures Although plaintiffs attack three categories of expenditures that are currently classified by the Union as part of the cost of collective bargaining, none of them resorted to the arbitration procedures that were established pursuant to Hudson to pursue such a challenge. See Hudson, 475 U.S. at 311, 106 S.Ct. at 1078 (White, J., concurring) (“[I]f the union provides for arbitration and complies with the other requirements specified in our opinion, it should be entitled to insist that the arbitration procedure be exhausted before resorting to the courts.”). Even though plaintiffs assert that they are not challenging the amount, only the classifications of expenditures, the arbitration process is the appropriate route for raising these issues since they are inextricably intertwined. Therefore, the Court will refrain from ruling on these particular objections voiced by plaintiffs. It may be observed, however, that each of the categories challenged has been addressed by courts previously. The plaintiffs’ challenge to agency fees on collective bargaining efforts by units other than those to which plaintiffs belonged is undermined by the discussions in the various opinions in Beck v. Communication Workers of America, 776 F.2d 1187, 1210-13 (4th Cir.1985), reh’g en banc, 800 F.2d 1280 (4th Cir.1986), aff'd, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Cf. Ellis, 466 U.S. at 448-50, 104 S.Ct. at 1892-93 (approving fees for national conventions and social activities of the national union). However, the plaintiffs’ challenge to lobbying expenses of the Union finds support in the discussion in Beck, 776 F.2d at 1210-11. But compare, Lehnert v. Ferris Faculty Ass’n, 881 F.2d 1388, 1392 (6th" }, { "docid": "60039", "title": "", "text": "in Hudson, and the propriety of a union’s changeability determinations, considered separately by the Supreme Court in Lehnert [v. Ferris Faculty Association, 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991) ].” Jibson v. Michigan Education As sociation-NEA, 30 F.3d 723, 730 (6th Cir.1994); see also Hudson v. Chicago Teachers Union, 922 F.2d 1306, 1314 (7th Cir.1991) (holding that the plaintiffs “mistakenly equate[ ] the adequacy of the notice with the accuracy of the fee assessment”). Knight’s contention that she is not challenging factual determinations is unpersuasive and not supported by the cases on which she relies. In Abrams v. Communications Workers of America, 59 F.3d 1373, 1380 (D.C.Cir.1995), the notice was defective because it failed to inform employees that they could object, a factor not present in this case. In Hohe, 956 F.2d at 414, the court upheld the union’s standard for chargeable costs by treating the challenge as one “to the propriety of the fair share fee,” and not as the adequacy of notice. In Tierney v. City of Toledo, 824 F.2d 1497, 1505-06 (6th Cir.1987) (Tierney), the court did not hold that the union’s formulation of chargeable costs was “substantively erroneous”; the court held that the difference in formulation plans was “substantial.” We agree with the Sixth and Seventh Circuits that at the notice stage, we do not decide whether expenses are properly chargeable. Therefore, we vacate the portion of the district court’s order in which it held that the contested litigation expenses were properly chargeable. C. Next, Knight challenges KPEA’s distinction between objectors, who receive an immediate refund of that portion of fees attributable to nonchargeable expenses, and challengers who must pay the full fee and wait for a refund. Knight also argues that the indemnification clause is void as against public policy. We do not reach these issues. Knight’s challenge to the distinction between objectors and challengers is moot, because an arbitrator has already affirmed KPEA’s changeability determinations for the academic year in question. Thus, Knight will be treated no differently whether she chooses to accept KPEA’s changeability determination or the arbitrator’s. Knight’s argument" }, { "docid": "21070703", "title": "", "text": "part, 307 F.3d 760, 774 n. 21 (9th Cir.2002) (en banc) (remedy for improper “welcoming letter” was to send corrected letter to those who received defective notice; refunds should be made only to those who receive corrected notice and object). In this case, the district court found that the plaintiffs had no burden to object because the deductions were made “in the absence of a reasonably prompt notice that satisfied the requirements of Hudson.” It is true that a good deal of time elapsed between the initial paycheck deduction and the proper Hudson notice. But this does not mean the Union was intentionally dragging its feet. It issued a notice in June 1999 that it believed complied with Hudson,. Plaintiffs filed suit in November, contesting the adequacy of that notice. The Union issued two more notices in January 2000 in an attempt to comply with Hudson, even though the district court eventually found these lacking as well. The district court’s order even acknowledges that the Union had made good faith attempts to correct the notice and that the district court itself may have created the “piecemeal” approach to the notices. The purpose of the Hudson notice is to provide fee payers with adequate information so that they may decide whether to object or to challenge the Union’s calculation. See Hudson, 475 U.S. at 306, 106 S.Ct. 1066. In this case, the nonmembers all eventually received notices with sufficient information under Hudson, and a renewed opportunity to object and receive their money back with interest. We fail to see how plaintiffs suffered any compensable harm (aside from nominal damages) from the initial defective notice. On these facts, we hold that the May 2000 notice was adequate to renew the burden on the plaintiffs to object, and ordering a refund to nonobjecting plaintiffs was therefore overbroad. We stress, however, that ordinarily a lapse of thirteen months before issuing an adequate Hudson notice would be unacceptable, but in this case we place great signifi-canee on the district court’s finding that the Union was acting in good faith and on its concession that the" }, { "docid": "21070712", "title": "", "text": "and procedures.” In seeking a permanent injunction, the moving party must convince the court that relief is needed: “The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). In this case, the district court did not believe that a permanent injunction was warranted, noting that the Union mailed a proper notice in May 2000 for the 1999 fee payer year and then mailed another proper notice in June 2000 for the 2000 fee payer year. Thus, the court found “a constitutional agency-fee collection procedure is established and operating, and injunctive relief is no longer warranted.” In addition, the Union’s controller, Patrick Haagensen, declared under penalty of perjury that the Union would use the same Hudson notice format in the future. In a recent decision involving similar facts, we held that a district court had properly refused to grant declaratory and injunctive relief where a union had mailed an inadequate notice in October 1998, but then mailed a proper notice in December. Carlson v. United Academics, 265 F.3d 778, 786 (9th Cir.2001), cert. denied, 535 U.S. 970, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002). We noted that “[i]t is unreasonable to think that the Union would resort to conduct that it had admitted in writing was constitutionally deficient and had attempted to correct.... We do not believe United Academics would now attempt to revert to the deficient notice format and subject itself to future litigation that it would clearly lose.” Id. at 786-87; see also Wessel, 299 F.3d at 1194(holding that there is no need for permanent injunction where union issued corrected fair share notice and committed itself to include required information in future notices). The requirements of Hudson in this circuit have been clarified by this litigation. As in Carlson, it would be foolish for the Union to now revert to a deficient format and subject itself to additional lawsuits. The district court did not abuse its" }, { "docid": "60031", "title": "", "text": "the August 21 letter complied with the requirements of Hudson; (2) whether the November 10 notice complied with Hudson; (3) whether KPEA discriminated against fee payers who challenged the changeability determination compared to those who merely objected; and (4) whether the indemnification clause is void as against public policy. A.' The district court held that KPEA’s prompt refund of monies paid in response to the August 21 letter “cured” all deficiencies in the letter. Therefore, the court deemed the entire matter of the August 21 letter to be moot. We review a district court’s determination of mootness de novo. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994). An issue will be deemed moot if the court is unable to fashion any effective relief under the circumstances. American Casualty Co. v. Baker, 22 F.3d 880, 895-96 (9th Cir.1994). The August 21 letter was not a Hudson notice, as it failed to provide any breakdown between • chargeable and nonehargeable expenses. It was, however, a clear demand for representation fees. The end of the letter read, “[i]t is imperative that you get the KPEA MEMBERSHIP/FEE AND AUTHORIZATION FORM completed, signed, and returned to Payroll at Central Office by September 15 so that payroll deductions can begin in a timely manner.” (Emphasis added.) The constitutional defect in this letter was not that it was an inadequate Hudson notice (it did not even purport to be such), but rather that it sought to collect representation fees without providing a reasonable explanation of the basis for the fee. The letter’s statement that a Hudson notice would be forthcoming does not remedy the defect, because the letter required a response by mid-September, weeks before the Hudson notice was due to be distributed. KPEA argues that its collection procedure complied with Grunwald v. San Bernardino City Unified School District, 994 F.2d 1370 (9th Cir.1993). In Grunwald, we upheld a school district’s procedure of beginning payroll deductions for nonmember representation fees in September, even though the Hudson notices were not sent out until mid-October. We did so because, as a practical matter, the union" }, { "docid": "21070704", "title": "", "text": "and that the district court itself may have created the “piecemeal” approach to the notices. The purpose of the Hudson notice is to provide fee payers with adequate information so that they may decide whether to object or to challenge the Union’s calculation. See Hudson, 475 U.S. at 306, 106 S.Ct. 1066. In this case, the nonmembers all eventually received notices with sufficient information under Hudson, and a renewed opportunity to object and receive their money back with interest. We fail to see how plaintiffs suffered any compensable harm (aside from nominal damages) from the initial defective notice. On these facts, we hold that the May 2000 notice was adequate to renew the burden on the plaintiffs to object, and ordering a refund to nonobjecting plaintiffs was therefore overbroad. We stress, however, that ordinarily a lapse of thirteen months before issuing an adequate Hudson notice would be unacceptable, but in this case we place great signifi-canee on the district court’s finding that the Union was acting in good faith and on its concession that the court itself may have caused the delay in the Union’s issuing the ultimately acceptable notice. III. Class Certification We review a district court’s decision to grant or deny class certification for abuse of discretion. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended 273 F.3d 1266 (9th Cir.2001). The Union contends that the district court abused its discretion by certifying the class because the plaintiffs are not adequate class representatives. Specifically, the Union argues that the named plaintiffs’ interests are antagonistic to those of the class because the plaintiffs seek full restitution of all fees paid, a remedy that is “punitive insofar as it [seeks] to deprive the union of fees to which it was, doubtlessly, entitled.” Prescott I, 177 F.3d at 1109. The Seventh Circuit found that pursuit of such a remedy created a “potentially serious conflict of interest within the class,” justifying a refusal to certify a class. Gilpin v. Am. Fed. of State, County, and Municipal Employees, 875 F.2d 1310, 1313 (7th Cir.1989). The court explained: Two distinct" }, { "docid": "21070716", "title": "", "text": "to clarify that the district court may reduce costs to reflect limited success on the merits, see, e.g., Bryant v. City of Chicago, 200 F.3d 1092, 1102 (7th Cir.), cert. denied, 531 U.S. 821, 121 S.Ct. 64, 148 L.Ed.2d 30 (2000); Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1258 (10th Cir.1998), but that it is not required to do so if such costs are sufficiently related to the plaintiffs’ successful Hudson claim. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Each party to bear its own costs on appeal. . If a union must perform some additional calculations or adjustments in order to provide the requisite notice to nonmembers (such as adjusting a national union's breakdown of financial information to a local level, as in Knight, 131 F.3d at 813), then the certification may need to be more detailed and confirm that the local union has performed the mathematical adjustments correctly. . Although not directly on point, caselaw in other circuits is also generally in harmony with this view. In a recent Tenth Circuit case, the union issued a corrected notice and refunded the nongermane fees to the plaintiffs (who had apparently all objected to the initial notice). Wessel, 299 F.3d at 1193, 1194. The court noted that the district court correctly awarded nominal damages to the plaintiffs for the initial incorrect notice and that plaintiffs were entitled to no further relief. Id. at 1194; see also Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1532 (6th Cir.1992) (noting that until proper Hudson notice is issued, employee will be allowed subsequent opportunities to object). . We note that the inclusion of an allocation audit is no longer required in light of our holding in Section I, above. . Plaintiffs had contended that the Union had miscalculated the fee by charging fee payers for two nonchargeable expenditures, but were unsuccessful on these claims. Plaintiffs did not appeal from the grant of summary judgment to defendants on these claims." }, { "docid": "21070686", "title": "", "text": "chargeable to fee payers. The report further broke down the expenditures into approximately 50 subcategories. The notice, however, did not contain a copy of the complete auditor’s report, but .instead informed fee payers that: The Report itemizes and describes the major categories of expenditures by the [Union]. The amounts attributed to these categories of expenditures are taken from an independent audit and supporting documentation of [the Union’s] 1998 financial records contained in .the Financial Statements prepared by Gibson and Company, Inc., a certified public accounting firm. The notice also informed fee payers that a copy of the audit would be provided upon request. Plaintiffs filed their complaint in November 1999, asserting that the April and June notices were constitutionally inadequate under Hudson because they failed to include a copy of the auditor’s report. In December, the district court granted the plaintiffs’ motion to certify a class action. In January 2000, the Union mailed a copy of the audit to all fee payers. This notice was still found to be deficient, however, because it did not extend the time for fee payers to object. Still later in January 2000, the Union again tried to fulfill the plaintiffs’ demands and sent a new amended notice that cross-referenced both the June 1999 notice and the auditor’s report and extended the period for nonmembers to challenge the fee calculation. Although the district court noted that the Union had made a good faith effort to correct defects in the earlier notices and that the court itself may have caused the Union to use the “piecemeal” approach of correcting the defects, the court ultimately concluded that these notices still did not comply with Hudson because too much time had elapsed for the cross-references to be sufficient. Finally, in May 2000, the Union sent another “integrated” notice that included all the information from the previous notices, reopened the objection/challenge period, and accommodated an additional request by plaintiffs for an “allocation audit.” It is undisputed that this notice complied with Hudson. The Union’s calculation was then challenged through arbitration, and the arbitrator set the fee for objecting fee" }, { "docid": "5831384", "title": "", "text": "and remand. 1. BACKGROUND Pursuant to California law and provisions in the collective bargaining agreements (“CBAs”) governing their employment, the plaintiffs — who are not members of their local teachers union — are required to pay “agency” or “fair share” fees to those unions. See Cal. Gov’t Code §§ 3502.5(a), 3540.1(i), 3546. These fees, which are designed to compensate the un ions for the benefits that the plaintiffs receive from collective bargaining, are automatically deducted from the plaintiffs’ paychecks by their school district employers and passed on to the unions. Unions sometimes engage in activities unrelated to collective bargaining, such as contributing to political candidates and ideological causes. Agency fee payers, such as the plaintiffs, may not be required to support such activities. They may only be charged a pro rata share of the union’s expenditures on activities germane to representation. To ensure that agency fee payers are not required to pay fees in excess of those properly chargeable, they are afforded three procedural protections. First, agency fee payers are entitled to “an adequate explanation of the basis for the fee,” which “include[s] the major categories of expenses, as well as verification by an independent auditor.” Hudson, 475 U.S. at 307 n. 18, 310, 106 S.Ct. 1066. This explanation is called a “Hudson notice.” Second, unions must provide fee payers with “a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker.” Id. at 310, 106 S.Ct. 1066. Finally, unions must create “an escrow for the amounts reasonably in dispute while such challenges are pending.” Id. In this case, the unions failed to meet Hudson’s first requirement: provision of an adequate notice. The plaintiffs sued not only the union, but also the superintendents. The plaintiffs claimed, and the district court held, that the superintendents have a legal duty to ensure that the union complies with the Hudson notice requirement before deducting any agency fees. The superintendents appeal. II. STANDARD OF REVIEW We review a grant of summary judgment de novo. See Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). III. DISCUSSION The superintendents" } ]

[ { "docid": "22669664", "title": "", "text": "1915A, the district court conducted a preliminary screening of Plaintiffs complaint. Although the court noted that “[p]ro se pleadings must ... be liberally construed,” it dismissed the complaint for failure to state a claim. The court held that Plaintiffs placement in segregation pending his hearing did not violate his right to due process. The court also held that Plaintiff was not denied due process with regard to his disciplinary hearing. Finally, the court held that Plaintiffs allegations that Defendants had planted cocaine in his cell and made death threats against him did not constitute a cognizable claim. Plaintiff timely appealed. On appeal, this court appointed counsel for Plaintiff and ordered the government to appear at oral argument and to file either a supplemental brief or an amicus curiae brief. The government filed an amicus curiae brief. STANDARD OF REVIEW This court reviews de novo a district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. See Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir.1997). Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff. See id. Additionally, in general, courts must construe pro se pleadings liberally. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). DISCUSSION On appeal, Plaintiff claims that Defendants violated his due process rights under the Fifth Amendment and his Fourth Amendment right to be free from an unreasonable seizure. Plaintiff also claims that his confinement in the SHU was retaliatory. We consider each claim in turn. 1. Fourth and Fifth Amendment Claims With regard to his due process claim, Plaintiff argues, in essence, that his constitutional rights were violated because (1) he was placed in disciplinary segregation without first having been afforded a hearing, (2) his disciplinary hearing did not take place until 70 days after the incident, and (3) the hearing that he received was constitutionally defective, because he was not allowed to" } ]

[ { "docid": "16805860", "title": "", "text": "and Director Ryan’s approval of that conduct “forced him to cease conveying critically sensitive information concerning necessary aspects of his case for appellate adjudication to his attorney due to [ADCj’s continued threat to read any outgoing legal correspondence.” Nordstrom filed this § 1988 action pro se alleging that the ADC’s policy and practice of reading his outgoing legal mail violates his First, Sixth, and Fourteenth Amendment rights. In addition to costs, he seeks a declaration that the defendants’ conduct was unconstitutional and an injunction preventing them from reading his legal mail in the future. The district court dismissed the first amended complaint with prejudice at the pre-answer screening stage under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A. First, the court held that Nordstrom could not state a claim for violation of his right of access to the courts because he failed to allege Hawthorne’s conduct caused him actual injury. Second, it held that Nordstrom failed to state a claim for violation of his right to counsel; the court stated that he did not demonstrate that the ADC had a policy of reading legal mail or show how the “one-time occurrence” of Hawthorne reading the confidential letter “impacted the attorney-client relationship.” The court also ruled that a policy permitting staff to scan legal mail is permissible. Third and finally, the district court held that Nordstrom had no cognizable free speech claim because “the reading of an inmate’s legal mail, in the inmate’s presence, to check for the presence of contraband or illegal activity is the type of regulation allowed for the purpose of maintaining institutional security.” DISCUSSION I. Legal Standards We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo a district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to state a claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). Dismissal for failure to state a claim under § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113," }, { "docid": "5366471", "title": "", "text": "by the Administrative Review Board on June 10, 2009. SA at A-17. Turley then filed an October 2009 grievance. SA at A-27 (partially illegible). In this grievance, Turley described his confinement to a 40 square foot segregation cell with another prisoner. Turley alleges that this grievance was ignored by prison officials. Similarly, he received no response to a grievance filed in August 2010. In October 2010, Turley filed his pro se federal complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the district court reviewed this claim for sufficiency. The court dismissed both Eighth Amendment claims at the screening review stage and did not address the conspiracy or Due Process claims. The district court erroneously noted that Turley did not state “how long the lockdown lasted, making it impossible for the Court to determine ... whether there had been an eighth amendment violation.” Turley, now represented by counsel, is appealing the dismissal of his complaint. The state of Illinois has filed a brief as a party in interest in the matter. This court reviews § 1915A dismissals under the Federal Rule of Civil Procedure 12(b)(6) standard for stating a claim for relief. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010). Dismissal orders are reviewed de novo, “taking all well-pleaded allegations of the complaint as true and viewing them in the light most favorable to the plaintiff.” Id. at 756 (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000) (internal quotation marks omitted)). We must examine whether Turley properly exhausted administrative remedies before filing suit, whether these federal claims are time-barred and whether Turley’s complaint sufficiently states a claim to survive dismissal. We find that Turley’s Eighth Amendment claim clears these hurdles, but his Due Process claim does not, and so we partially reverse the judgment of the district court. Turley’s conspiracy claim is superfluous in light of the fact that all named defendants are state actors. I. Prisoners must properly exhaust all available administrative remedies before pursuing claims, including § 1983 actions, in federal court. Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2006). A" }, { "docid": "23265878", "title": "", "text": "the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983). A. Did the Distyict Court Err When It Dismissed Abbas’s Complaint Sua Sponte? Because Abbas proceeded informa pau-peris, the District Court predicated its dismissal of Abbas’s complaint upon 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). Those two statutes provide an efficient means by which a court can screen for and dismiss legally insufficient claims. See Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.2004). “Section 1915 governs proceedings in forma pauperis, while § 1915A applies to all civil complaints brought by prisoners against governmental officials or entities regardless of whether the prisoner has paid a filing fee.” Id. (internal quotations omitted). “Sections 1915 and 1915A recite identical grounds for dismissal, compare 28 U.S.C. § 1915A(b)(l) with 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), and we have found both sections applicable to prisoner proceedings in forma pauperis.” Id. The screening provision in section 1915A(a) requires courts to “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The dismissal provision in section 1915A(b) provides that a court “shall identify cognizable claims or dismiss the complaint ... if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(l). Although section 1915A grants courts the authority to dismiss a complaint with prejudice, nothing in sections 1915 and 1915A alters “[t]he settled rule ... that 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.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004) (internal quotations omitted). When reviewing a district court’s decision to dismiss a prisoner complaint pursuant to" }, { "docid": "2379599", "title": "", "text": "review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Upon review, the court may dismiss the complaint, or any portion of it, if it “is frivolous, malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. § 1915A(b)(1). Defendants suggested that the district court screen the SAC in order to “determine whether Plaintiff failed to satisfy the mandatory precondition to bringing suit in federal court, to wit: exhaustion of any available administrative remedies before challenging prison conditions in federal court.” The district court sua sponte dismissed claims thirteen through thirty-three for failure to exhaust under § 1997e. It interpreted our decision in McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir.2002) (per curiam), as requiring that claim exhaustion must occur prior to the filing of the original complaint. It then held that Rhodes had failed properly to exhaust claims thirteen through thirty-three, reasoning that because they arose from events occurring between January 2, 2002, and November 15, 2003, “any exhaustion of these claims necessarily occurred after the filing of this action,” on January 4, 2002. Rhodes timely appeals. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s legal conclusions de novo. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). Analysis The district court erred in dismissing the additional claims set forth in Rhodes’ SAC for failure to exhaust under § 1997e. The district court reasoned that the PLRA’s exhaustion requirement bars amended complaints from asserting new claims based on conduct that occurred after the initial complaint was “brought,” even when the prisoner has exhausted the administrative remedies available to address this new conduct before filing the amended complaint. In doing so, the district court relied on our opinion in McKinney. More recently, we interpreted the PLRA’s exhaustion requirement in Vaden v." }, { "docid": "23051559", "title": "", "text": "reviewed your written grievance and the answers provided at the informal and first level. I agree with these responses. In almost cases [sic] cataract surgery is not an emergency. You should be evaluated periodically to determine the degree of impairment caused by your cataract with regard to your ability to perform the activities required in your current living situation. Based on the practitioner[’]s evaluation the request can be re-considered. Colwell filed this lawsuit under 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights. Specifically, he claims that the prison officials were deliberately indifferent to his serious medical needs in refusing him surgery to restore his vision. On the defendants’ motion for summary judgment, the district court ruled, first, that Colwell’s cataract-induced' blindness was a serious medical need. However, it also held that Colwell failed to establish that the defendants were deliberately indifferent to that need. It reasoned that Colwell had not shown that the Utilization Review Panel’s denial or delay in approving surgery led to further injury to his eye, and explained that “medical providers have determined that surgery is not medically warranted in light of Plaintiffs overall visual acuity and ability to adequately function.” The court also held that the Panel’s decision to refuse surgery amounted to a difference of opinion over the best course of treatment, and that Colwell had not shown that the NDOC’s course of action was “medically unacceptable” or “made in conscious disregard of an excessive risk to his health.” DISCUSSION 1. Legal Standards We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the district court’s grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). “We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.2005). The government has an “obligation to provide medical care for those whom it is punishing by incarceration,” and failure to meet that obligation" }, { "docid": "22795784", "title": "", "text": "OPINION W. FLETCHER, Circuit Judge: Juan Roberto Albino brought suit against Los Angeles County Sheriff Lee Baca, several Doe defendants, and Los Angeles County, alleging violations of 42 U.S.C. § 1983, as well as several state laws, arising out of injuries Albino suffered while confined in Los Angeles County jail. Albino’s claims are subject to the Prison Litigation Reform Act (“PLRA”), which requires that a prisoner challenging prison conditions exhaust available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). Defendants moved for summary judgment based, inter alia, on Albino’s alleged failure to exhaust. The district court granted the motion, dismissing Albino’s federal claims without prejudice. The court also dismissed his state claims without prejudice. See 28 U.S.C. § 1367(c). We reverse. First, although it may be more a matter of a change of nomenclature than of practical operation, we overrule Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), in which we held that a failure to exhaust under § 1997e(a) should be raised by a defendant as an “unenumerated Rule 12(b) motion.” We conclude that a failure to exhaust is more appropriately handled under the framework of the existing rules than under an “unenumerated” (that is, non-existent) rule. Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts. Second, we hold that Albino has satisfied the exhaustion requirement of § 1997e(a). Defendants have failed to prove that administrative remedies were available at the jail where Albino" }, { "docid": "22423119", "title": "", "text": "Opinion by Judge FARRIS; Partial Concurrence and Partial Dissent by Judge NOONAN. OPINION FARRIS, Senior Circuit Judge: Petitioner Raymond Watison, who is serving a sentence in Nevada State Prison, sued defendant prison officials under 42 U.S.C. § 1983 pro se, alleging that they violated several of his rights under the U.S. Constitution. He also alleged that the officials violated various Nevada laws. The district court dismissed Watison’s complaint with prejudice. Watison appealed the dismissal of some of his claims and had counsel appointed for him. We have jurisdiction under 28 U.S.C. § 1291. Watison failed to state an Eighth Amendment claim against Correctional Officer Sean LaGier and failed to state a First Amendment retaliation claim against Correctional Officer Joseph Rodriguez, but Watison’s First Amendment retaliation claims against Associate Warden Mary Carter and Correctional Officers Rosa Rodriguez, Sean LaGier, and Danilo Santos require further consideration. The district court should not have dismissed Watison’s state-law claims with prejudice. We therefore affirm in part, and remand for further proceedings. I. We review the dismissal of a complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998). The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim. See, e.g., Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000). Dismissal is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). In making this determination, we take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir.1996). We “construe [a pro se plaintiffs] pleadings liberally and ... afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010) (internal quotation" }, { "docid": "20451547", "title": "", "text": "OPINION REINHARDT, Circuit Judge: We hold in this case that Band and Wyatt notices must be served concurrently with motions to dismiss and motions for summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose those motions. Notices served at a time when defendants have not yet filed motions to dismiss or motions for summary judgment (and may never file such motions) do not sufficiently serve that purpose. INTRODUCTION Earnest Cassell Woods, formerly an inmate at California State Prison, Solano, sued Warden Tom Carey and Appeals Coordinator Santos Cervantes under 42 U.S.C. § 1983 for deliberate indifference to his medical needs due to the improper denial of two grievance forms seeking dental care. First, the district court granted Carey’s motion for summary judgment, concluding that Woods failed to connect him to the alleged deprivation of his constitutional rights. Subsequently, it granted the defendants’ motion to dismiss for failure to exhaust administrative remedies, but only as to one of the two grievances. After proceeding to trial on the remaining grievance, Woods obtained a jury verdict against Cervantes, the only remaining defendant. Woods appeals the district court’s grant of the motion for summary judgment in favor of Carey as well as the motion to dismiss in favor of both defendants as to the purportedly unexhausted grievance. He asserts that he was not provided fair notice of the requirements necessary in order to oppose the motions. We agree that the notice provided by the district court, which preceded the filing of the motion for summary judgment by over a year and the motion to dismiss by more than two years, did not provide fair notice to Woods, a pro se prisoner plaintiff. We hold that notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.2003), must be provided to pro se prisoner plaintiffs at the time the defendants’ motions are filed. BACKGROUND While incarcerated at California State Prison, Solano, Woods filed a request to receive dental" }, { "docid": "6212308", "title": "", "text": "and Corrections Corporation of America (CCA), which manages the D.C. Jail. Id., ¶¶ 2, 4, 5. He asserts five causes of action: a 42 U.S.C. § 1983 claim for violation of the Eighth Amendment against the District only (Count I) and common-law counts against both Defendants of negligence (Count II), assault and battery (Count III), intentional infliction of emotional distress (Count IV), and negligent infliction of emotional distress (Count V). The District has now filed a Motion to Dismiss or, in the alternative, for Summary Judgment. II. Legal Standard In moving to dismiss Count I (§ 1983), the District argues that Plaintiff failed to exhaust available administrative remedies prior to filing the instant civil action. See Mot. at 6-7. The Prison Litigation Reform Act (PLRA) exhaustion requirement, however, is not a jurisdictional bar, Woodford v. Ngo, 548 U.S. 81, 101, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Ali v. Dist. of Columbia, 278 F.3d 1, 5-6 (D.C.Cir.2002); instead, it operates as “ ‘an affirmative defense that the defendants have the burden of pleading and proving.’ ” Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.2005) (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004)); Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 681 (4th Cir.2005) (“[A]n inmate’s failure to exhaust his administrative remedies must be viewed as an affirmative defense that should be pleaded or otherwise properly raised by the defendant.”); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003) (holding that “nonexhaustion under § 1997e(a) ... does not impose a pleading requirement,” but “creates a defense [such that] defendants have the burden of raising and proving the absence of exhaustion”), cert. denied sub nom., Alameida v. Wyatt, 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003); Jackson v. Dist. of Columbia, 89 F.Supp.2d 48, 56 (D.D.C.2000) (holding that exhaustion under § 1997e(a) is an affirmative defense), vacated in part on other grounds, 254 F.3d 262 (D.C.Cir.2001). Accordingly, a Rule 12(b)(6) motion to dismiss for “failure to state a claim upon which relief can be granted” or a Rule 56 motion for summary judgment, rather than" }, { "docid": "2163233", "title": "", "text": "OPINION MERRITT, Circuit Judge. This appeal arises from pro se Kentucky prisoner Roger Anthony Brown’s civil rights suit against prison officials for allegedly denying him access to the courts. The District Court dismissed his civil rights suit as frivolous for failure to comply with the statute of limitations pursuant to 28 U.S.C. § 1915A. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. See Fed. R.App. P. 34(a). Brown, proceeding in forma pauperis, claimed in a complaint dated November 30, 1998, that several Kentucky corrections officials denied him access to the courts by denying him access to legal books and legal aides. The District Court dismissed Brown’s suit, concluding that it was barred by Kentucky’s one-year statute of limitations. In his timely appeal, Brown argues that the district court erred by dismissing his suit as barred by the statute of limitations. The defendants have not been served. We review de novo a judgment dismissing a suit as frivolous under § 1915A. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (1999) (emphasis added). This language unambiguously requires exhaustion as a mandatory threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of time required to exhaust “such administrative remedies as are available.” For this reason, the statute of limitations which applied to Brown’s civil rights action was tolled for the period during which his available state remedies were being exhausted. See Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir.1999) (per curiam); Cooper v. Nielson, 194 F.3d 1316, 1999 WL 719514 (9th Cir.1999). In the case before us, it is not clear when the period of" }, { "docid": "7836161", "title": "", "text": "505 because Veoh “failed to demonstrate that UMG’s legal challenge was improper, in bad faith, or contrary to the purposes of the Copyright Act.” Because the court concluded fees were not “properly awardable” under § 505, it also denied Veoh fees and costs under Rule 68. Veoh does not challenge the denial of fees under § 505, but appeals the denial of Rule 68 costs and fees. UMG appeals the entry of summary judgment in Veoh’s favor and the dismissal of its complaint against the Investor Defendants. Discussion I. The district court had jurisdiction over these matters under 28 U.S.C. § 1331, and we have jurisdiction over the appeals under 28 U.S.C. § 1291. We review de novo a district court’s summary judgment ruling. See Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000, 1002 (9th Cir.2004). “Viewing the evidence in the light most favorable to the non-moving party,” the moving party has the “burden to show that there are no genuine issues of material fact,” and that it is entitled to judgment as a matter of law. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 265 (9th Cir.1991). Review of a dismissal for failure to state a claim under Rule 12(b)(6) is likewise de novo. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). “On a motion to dismiss, the court accepts the facts alleged in the complaint as true,” and “[djismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged.” Id. We also review de novo the district court’s interpretation of the Copyright Act, see Rossi 391 F.3d at 1002-03, and of Rule 68, see Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir.2003). II. “Difficult and controversial questions of copyright liability in the online world prompted Congress to enact Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act (OCILLA).” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004). Congress recognized that “[i]n the ordinary course of their operations service providers must engage in all kinds" }, { "docid": "22629136", "title": "", "text": "improper screening or the denial of an Olson review of his records. Although Sapp had filed grievances regarding the denial of medical treatment, the magistrate judge concluded that these grievances would not have sufficed to exhaust his claims against Peterson because they did not “mention defendant Peterson by name or suggest that defendant Peterson was responsible for the alleged inadequate treatment or delays.” Although Sapp’s November 18, 2002, appeals form named Peterson, that appeal was not exhausted before the suit was filed. The district judge adopted the magistrate judge’s proposed Findings and Recommendations in full and dismissed Sapp’s claims without prejudice. Sapp timely appealed to this court. After holding the case in abeyance pending our decision on remand in Ngo v. Woodford, 539 F.3d 1108 (9th Cir.2008), we appointed pro bono counsel for Sapp. II. Jurisdiction and Standard of Review The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal based on Sapp’s failure to exhaust. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.2007). In deciding a motion to dismiss for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). We review the district court’s factual findings for clear error. O’Guinn, 502 F.3d at 1059. III. Discussion The PLRA requires a prisoner to exhaust his administrative remedies before filing a lawsuit concerning prison conditions: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To “property]” exhaust, a prisoner must comply “with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on" }, { "docid": "2379598", "title": "", "text": "by retaliating against him for exercising his First Amendment right to pursue the prison grievance process against them. The complaint was officially filed with the district court on January 4, 2002. Defendants filed a motion to dismiss Rhodes’ claims, which the district court granted. We reversed on appeal. See Rhodes v. Robinson, 408 F.3d 559 (9th Cir.2005). On remand to the district court, Rhodes filed his SAC on March 20, 2006, which added claims thirteen through thirty-three. These claims allege that the same defendant guards perpetrated new retaliatory acts against Rhodes between January 2, 2002, and November 15, 2003, in response to his initiating this lawsuit. Rhodes’ SAC was filed on a form for pro se prisoner-litigants. He checked boxes on the form that stated, and thereby alleged, that he had completed the grievance process available at CCI concerning the facts relating to the new claims alleged in the SAC. Nothing in his SAC, or any documents attached to it, controverted that allegation. The PLRA incorporates a screening procedure, which provides that the “court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Upon review, the court may dismiss the complaint, or any portion of it, if it “is frivolous, malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. § 1915A(b)(1). Defendants suggested that the district court screen the SAC in order to “determine whether Plaintiff failed to satisfy the mandatory precondition to bringing suit in federal court, to wit: exhaustion of any available administrative remedies before challenging prison conditions in federal court.” The district court sua sponte dismissed claims thirteen through thirty-three for failure to exhaust under § 1997e. It interpreted our decision in McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir.2002) (per curiam), as requiring that claim exhaustion must occur prior to the filing of the original complaint. It then held that Rhodes had failed" }, { "docid": "16805861", "title": "", "text": "not demonstrate that the ADC had a policy of reading legal mail or show how the “one-time occurrence” of Hawthorne reading the confidential letter “impacted the attorney-client relationship.” The court also ruled that a policy permitting staff to scan legal mail is permissible. Third and finally, the district court held that Nordstrom had no cognizable free speech claim because “the reading of an inmate’s legal mail, in the inmate’s presence, to check for the presence of contraband or illegal activity is the type of regulation allowed for the purpose of maintaining institutional security.” DISCUSSION I. Legal Standards We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo a district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to state a claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). Dismissal for failure to state a claim under § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.2012). To survive § 1915A review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted)). Pro se complaints are construed “liberally” and may only be dismissed “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (quoting Silva, 658 F.3d at 1101); see Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.1988) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” (internal quotation marks omitted)). II. Constitutional Framework Federal courts have traditionally “adopted a broad hands-off attitude toward problems of prison administration” because “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Procunier v. Martinez, 416" }, { "docid": "23597447", "title": "", "text": "validity of disciplinary convictions, but failed to do so on his remaining five claims. Because Freeman failed to comply with our “total exhaustion” requirement for prisoner § 1983 claims, the district court then dismissed the complaint and the entire action without prejudice. Freeman appeals the district court’s determination. As he proceeds pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.1998). In this appeal, Freeman argues that the district court erred in (1) applying the total exhaustion requirement to his § 1983 action; (2) raising the exhaustion requirement sua sponte, holding that it is not an affirmative defense, and placing the burden of establishing it on Freeman; (3) divesting itself of subject matter jurisdiction based on the failure to exhaust; (4) finding that Freeman did not exhaust his available remedies; and (5) denying his motion for leave in forma pauperis (IFP). Under the prior precedent of this circuit, Freeman’s claims would have been unavailing. In Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir.2004), we construed the Prison Litigation Reform Act (PLRA) to append a “total exhaustion” requirement to § 1983 actions. Section 1997e(a) of Title 42 provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] ... until such administrative remedies as are available are exhausted.” We interpreted this to require a prisoner to exhaust remedies on all his claims or face dismissal. Thus, if a prisoner submits a complaint containing one or more unex-hausted claims, the district court must generally dismiss the entire action without prejudice. Id. Next, in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir.2003), we parted company with those circuits interpreting § 1997e(a)’s exhaustion requirement as an affirmative defense. See, e.g., Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). Rather, we concluded that § 1997e(a) charged prisoners with the burden of pleading exhaustion and a complaint “that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted.” Steele, 355 F.3d at" }, { "docid": "2379600", "title": "", "text": "properly to exhaust claims thirteen through thirty-three, reasoning that because they arose from events occurring between January 2, 2002, and November 15, 2003, “any exhaustion of these claims necessarily occurred after the filing of this action,” on January 4, 2002. Rhodes timely appeals. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s legal conclusions de novo. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). Analysis The district court erred in dismissing the additional claims set forth in Rhodes’ SAC for failure to exhaust under § 1997e. The district court reasoned that the PLRA’s exhaustion requirement bars amended complaints from asserting new claims based on conduct that occurred after the initial complaint was “brought,” even when the prisoner has exhausted the administrative remedies available to address this new conduct before filing the amended complaint. In doing so, the district court relied on our opinion in McKinney. More recently, we interpreted the PLRA’s exhaustion requirement in Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006). Neither of these cases, however, addresses the circumstance of the case at bench, in which a prisoner is filing an amended complaint based on new conduct. Nor do they support the dismissal of claims thirteen through thirty-three, which were newly added in Rhodes’ SAC. McKinney held that the PLRA’s exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted claims, even if the prisoner exhausts his administrative remedies while his case is pending. See 311 F.3d at 1199. Vaden held that a prisoner must exhaust his administrative remedies before he ten ders his complaint to the district court. See 449 F.3d at 1050. Vaden also held that the claims which are exhausted after the complaint has been tendered to the district court, but before the district court grants him permission to proceed in forma pauperis and files his complaint, must be dismissed pursuant to § 1997e. See id. at 1050-51. Together, these cases stand for the proposition that a prisoner must exhaust his administrative remedies" }, { "docid": "16624992", "title": "", "text": "MEMORANDUM Federal prisoner Jackson Byrant Bau-gus appeals pro se from the district court’s judgment dismissing his action alleging that defendants violated his due process rights as a result of his car being seized and retained in police custody for over seven years. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim under 28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm. The district court properly dismissed Baugus’s action as time-barred. See Mont.Code Ann. § 27-2-204(1) (three-year statute of limitations for personal injury claims); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.2004) (“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions[.]”); see also Wallace v. Kato, 549 U.S. 384, 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“The cause of action accrues even though the full extent of the injury is not then known or predictable.” (citation and internal quotation marks omitted)). Baugus’s remaining contentions, including that the district court improperly denied his motion to proceed in forma pau-peris, are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." }, { "docid": "22071915", "title": "", "text": "and unsafe living conditions in violation of the Eighth Amendment of the United States Constitution. Defendants moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court granted Defendants’ motion and dismissed the action with prejudice. It held that Griffin had failed to exhaust his administrative remedies, noting that he alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. Griffin filed a Motion to Reconsider, which the district court granted for reasons unrelated to this appeal. The district court then dismissed the action without prejudice, reiterating the reasoning underlying its earlier dismissal. Griffin timely appeals. The district court’s dismissal without prejudice would typically constitute a non-final judgment and preclude appellate review. However, we treat the dismissal as final because Griffin “has no way of curing the defect found by the court: there is no indication he could begin a new administrative process in the prison.” See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798" }, { "docid": "22071916", "title": "", "text": "1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Griffin properly appealed his grievance through all steps that the Maricopa County jail held out. He filed an Inmate Grievance Form and completed the prison’s appeals process. Defendants assert that Griffin nonetheless failed to exhaust properly. Griffin did not grieve that prison staff members were deliberately indifferent to his medical needs, an allegation that now forms the primary component of his Eighth Amendment claim. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Defendants contend that, without this allegation, the grievance was not factually specific enough to satisfy the PLRA’s exhaustion requirement. Griffin asserts that his grievance alleged every fact necessary for proper exhaustion. I. Appropriate Standard of Factual Specificity The Supreme Court held in Jones v. Bock that a prison’s own grievance process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion requirement. 549 U.S. at 218,127 S.Ct. 910. The Maricopa County jail’s procedures, however, provide little guidance as to what facts a grievance must include. The jail’s Inmate Grievance Form" }, { "docid": "22899677", "title": "", "text": "exception of two days, he has been held in a single-occupancy cell. On December 17, 2000, after several requests to switch into a double-occupancy cell were denied, Ve-ney filed a grievance with Riverside alleging that prison officials, by not allowing him to switch cells with other inmates, were discriminating against him because he is a homosexual male. On December 22, 2000, Captain L. White ruled that Ve-ney was not being discriminated against. Veney unsuccessfully appealed White’s decision under the Riverside grievance procedure. ■ On March 7, 2001, Veney filed a pro se complaint in the United States District Court for the Eastern District of Virginia under 42 U.S.C.A. § 1983, alleging that prison officials had violated his constitutional right to equal protection of the law. In his complaint, Veney claims that he is being treated differently from similarly situated heterosexual males and homosexual females, both of whom, asserts Veney, are housed in double-occupancy cells at River side. The district court, as required under the Prison Litigation Reform Act of 1996 (PLRA), reviewed Veney’s complaint to identify any cognizable claims. See 28 U.S.C.A. § 1915A (West Supp.2001). After careful consideration of Veney’s pleadings, the district court determined that his complaint failed to state a claim upon which relief may be granted and dismissed the action. On appeal, Veney challenges the district court’s dismissal of his equal protection claim, asserting that his complaint alleges specific facts showing that correctional officials treated him differently from similarly situated inmates without a legitimate penological reason for doing so. II. Under § 1915A, the provision at issue in this case, the district court is required to review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity ... [and] identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... fails to state a claim upon which relief may be granted....” 28 U.S.C.A. § 1915A(a), (b)(1). We review dismissals for failure to state a claim de novo. See Sanders v. Sheahan, 198 F.3d 626, 626 (7th" } ]

[ { "docid": "1952235", "title": "", "text": "the same day. Appellant was driving the truck and John Munnerlyn was a passenger. The trooper charged appellant with reckless driving and driving without a license. The truck was carried to Tuskegee and placed at the Macon County jail and subsequently identified as the stolen vehicle. The defendant’s motion for judgment of acquittal made at the conclusion of the government’s case, was overruled. The defense called Munnerlyn as a witness. His testimony was equivocal and in part contradictory to a statement given by him to the FBI. But it included testimony that he had stolen the truck and that appellant took over the driving on the outskirts of Atlanta to relieve Munnerlyn, who was drunk, after which Munnerlyn passed out, and that Munner-lyn did not even know when the truck crossed from Georgia to Alabama. It also included Munnerlyn’s admission that on February 9 he had told an FBI agent he had been drinking with appellant and had told appellant he was going to steal a car. The defendant’s motion for judgment of acquittal was renewed at the conclusion of the evidence and was again denied. The defendant lost the benefit of appellate review of the initial denial of his motion for judgment of acquittal by presenting evidence which supplied deficiencies in the government’s case. United States v. Wallace, 417 F.2d 522 (5 Cir. 1969). The appellant launches a full-scale attack on this rule. 8 Moore, Federal Practice, j[ 29.05, presents the arguments pro and con. We are not prepared to overturn the established rule of this circuit on this issue. When the motion was renewed it was properly denied. It has been held regularly and repetitively that unexplained possession of a vehicle recently stolen in another state permits, although it does not require, inferences that the possessor knew the vehicle was stolen and that he transported it in interstate commerce, e. g., Beufve v. United States, 374 F.2d 123 (5th Cir. 1967). Appellant urges that allowing the inferences to be drawn from unexplained possession is contrary to the rule that in a circumstantial evidence case the evidence must be" } ]

[ { "docid": "3331964", "title": "", "text": "guilt. We cannot agree that this is a case in which affirmance is appropriate because of the “overwhelming evidence of defendant’s guilt.” Butler v. United States, 191 F.2d 433 (4th Cir. 1951). We do not concur in this assessment. The evidence was not so one-sided, and the language complained of cannot be treated as a harmless transgression. The Government produced no direct evidence that Gambert transported the car in interstate commerce. Moreover, there was no direct evidence either that it was the defendant who rented the car under the name “Wolfe Spencer” or that he later gained possession of the car and transported it in interstate commerce knowing it to be stolen. Two Government witnesses did testify that they had seen Gambert in possession of cards bearing the name “Wolfe Spencer,” but cross-examination revealed the strong possibility that both of them were biased against the defendant. No other evidence was introduced to identify him as the man who rented the car from Avis, although another Government witness did testify that Gambert called him from New York the day before the car was rented at the Newark Airport. This witness also acknowledged that he had a strong dislike of the defendant. To show that Gambert knew when he transported the vehicle in interstate commerce that it was stolen, the Government relied on evidence showing his possession of the car in Columbia and his unexplained abandonment of it in January, 1968. The evidence also showed, however, that the defendant drove the car around Columbia for approximately six months, during which time he made no attempt to conceal his possession, to alter the car’s appearance, or to change the New York licence plates. He did not even remove the Avis rental sticker from the car door. A defense witness testified that Gambert had said that a third person who owed him $1,000 gave him the use of the car, and a Government witness partially corroborated the story. In reviewing the evidence, we do not mean to suggest that it was insufficient, if believed, to sustain a conviction. The defendant’s possession of the car" }, { "docid": "13308279", "title": "", "text": "as the signature of the renter. Dr. Jacob V. Aranda testified that around midnight of October 19, 1969, while dancing in Montreal, Quebec, he was bumped in the back and that ten minutes later he noticed his wallet was gone. He reported the incident to the Montreal police. The wallet contained many personal documents, including credit cards and driver’s licenses. Dr. Aranda’s New York driver’s license was used for identification in renting the Pontiac. Dr. Aranda also testified that the number of one of his credit cards, which was not recovered, looked like the number of the card used to rent the Pontiac. He received gasoline bills, which had been charged to his Esso credit card, bearing the same license number as that on the 1970 Pontiac. He testified that the signature on the bills and the rental agreement were the same. To connect the defendant with the Pontiac in Vancouver, the Government proved that the defendant’s fingerprint was found on the rental agreement, and presented expert testimony that the defendant signed “J. V. Aranda” to the agreement. Although the rental clerk could not positively identify the defendant as the person renting the car, she felt “quite sure” he was the same man. The evidence at the Louisiana end of the transportation is equally strong. The defendant’s brother testified that on November 1, 1969, he saw the defendant-driving a green 1970 Pontiac with British Columbia license plates in New Orleans. The defendant lived with his brother and his wife for part of November and during that time the brother and wife used the same car. On December 4, the defendant called his brother from jail and told the brother that the car was stolen and to get rid of it. The brother took the ear to a parking area in Chalmette, Louisiana, abandoned it and threw away the keys. The Pontiac was discovered abandoned in a business parking lot in Chalmette and was impounded by the police in the early morning hours of December 7, 1969. The defendant’s fingerprint was found on the rear view mirror. I. Defendant asserts that" }, { "docid": "23369205", "title": "", "text": "at the time he received the message, he believed that the dispatcher had obtained some information from an inspector at the Agricultural Inspection Station located at the Nevada-Arizona border. The Government did not call either the dispatcher or the inspector to testify. Officer Holland knew nothing more about the information upon which the dispatcher relied, and he knew none of the facts upon which the inspector relied to transmit the message. Based solely on the dispatcher’s report, and not upon any observations of his own to justify the stop, Officer Holland saw the described vehicle and stopped it. Robinson was unable to produce his driver’s license or the vehicle registration. A search of the automobile followed, during the course of which a bill of lading was discovered showing that the automobile had been shipped to a dealer in Las Vegas. The speedometer registered the exact mileage between Las Vegas, Nevada, and Kingman, Arizona. Officer Holland arrested Robinson for driving without a license. While Robinson was in custody, after effectively waiving his Miranda rights, he confessed the theft and the interstate transportation of the automobile. Robinson moved to suppress all of the evidence obtained after the stop as fruit of the illegal stop. Because we agree that the stop was illegal, the evidence should have been suppressed. As the Supreme Court stated in United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 486: “The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 899 (1968).” The stop violated the Fourth Amendment unless specific articulable facts, taken together with rational inferences from those facts, reasonably warranted a founded suspicion that Robinson was engaged in criminal activity. (E. g., Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868; United States v. Mallides (9th Cir. 1973) 473 F.2d 859, 861.) Officer Holland had no personal knowledge of any" }, { "docid": "11822127", "title": "", "text": "DUNIWAY, Circuit Judge: Keegan appeals from a judgment whereby he was sentenced following the verdict of a jury convicting him of a violation of 18 U.S.C. § 2312, transporting a stolen vehicle in interstate commerce, knowing that it was stolen. The evidence, stated most favorably to the government (Keegan offered none), is as follows: On August 14,1966, Gary Barilla, of Pittsburgh, Pennsylvania, had left his car, a 1966 Pontiac Bonneville, brown with white vinyl top, Pennsylvania license No. 61286R, serial No. 262376 P 236853, in a parking lot adjacent to the apartment house where he lived. He last saw it at 1:00 A.M. on August 14. At 10:00 A.M., the car was gone. No one had his permission to use it. In the glove compartment was a wallet containing a number of cards, including particularly a Credit Card, exhibit lc, issued by the Pittsburgh National Bank. Keegan was at the apartment of a friend in Pittsburgh, about 10 minutes driving time from the borough where Barilla lived, on August 13 and 14. He left the friend’s apartment late in the evening of the 13th, returned at about 4:00 A.M. on the 14th, and then departed. On September 30,1966, Keegan arrived at the Riviera Hotel in Las Vegas, Nevada. He registered under the name of Gary J. Barilla, using the address shown on exhibit lc, and was assigned to Room 326. He had no reservation. The registration card is exhibit 2. By October 2, he had run up a bill for room, meals and other items in excess of $90.00. As a result, Mr. Chappell, the hotel manager, became concerned. He did not know whether Keegan was still at the hotel. He phoned Room 326, got no answer, and then went to the room with a hotel employee, a security guard. Pie knocked and no one answered, and he entered with a pass key. There he saw an identification card of Thomas Keegan. He wrote the Keegan name and address on the regis tration card, exhibit 2. He then returned to his office and called the Clark County Sheriff’s office. Two" }, { "docid": "13308280", "title": "", "text": "to the agreement. Although the rental clerk could not positively identify the defendant as the person renting the car, she felt “quite sure” he was the same man. The evidence at the Louisiana end of the transportation is equally strong. The defendant’s brother testified that on November 1, 1969, he saw the defendant-driving a green 1970 Pontiac with British Columbia license plates in New Orleans. The defendant lived with his brother and his wife for part of November and during that time the brother and wife used the same car. On December 4, the defendant called his brother from jail and told the brother that the car was stolen and to get rid of it. The brother took the ear to a parking area in Chalmette, Louisiana, abandoned it and threw away the keys. The Pontiac was discovered abandoned in a business parking lot in Chalmette and was impounded by the police in the early morning hours of December 7, 1969. The defendant’s fingerprint was found on the rear view mirror. I. Defendant asserts that he was denied a fair trial because of comment on his failure to take the stand, other remarks made by the prosecutor in his opening and closing arguments claimed to be prejudicial, and an implication that defendant had a prior criminal record. The comment on defendant’s failure to take the stand occurred during the closing argument. The prosecutor had stated that the defense could rebut the presumption raised by evidence of possession of recently stolen property when he made the critical remark that “he is not bound to take the stand at all.” It has long been the law in federal courts that remarks about the defendant’s failure to testify constitute reversible error. Such statements infringe on the defendant’s presumption of innocence and violate his Fifth Amendment right against self-incrimination by converting silence to evidence of guilt. 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The test in determining whether such a" }, { "docid": "2192116", "title": "", "text": "PICKETT, Senior Circuit Judge. Dwight David Matthews appeals from a' conviction and sentence for violation of the National Motor Vehicle Theft Act, 18 U.S.C. § 2312. The essence of Matthews’ contention here is that the evidence is insufficient to show that the automobile in question was stolen by him and transported interstate. Admittedly, the vehicle was driven from Montana and a few days later found in Matthews’ possession in New Mexico. On May 30, 1969, an Avis Rent-A-Car agent in Bozeman, Montana rented a red 1969 Ford XL to a person representing himself to be Donald Richard Cox. The rental contract required the return of the automobile on June 6, 1969. At the time of the rental, Cox and Matthews were in Bozeman, employed by a traveling carnival. The automobile was last seen in Bozeman on the day that it was rented. Following conversations with Cox during the night of May 30 and the morning of May 31, the rent-a-car agent reported to the police that the automobile had been stolen. Matthews was driving the automobile in Santa Fe, New Mexico, on June 3. While in Santa Fe, Matthews caused the hood and trunk of the car to be painted black. The interi- or was also sprayed with black paint. Matthews explained to a young friend whom he had met in Santa Fe that the painting was done because he was tired of looking at the same car. While in Santa Fe, Matthews represented himself to be Donald Richard Cox and purchased merchandise with Cox’s credit cards. On June 7, Matthews left Santa Fe with his young friend, headed for Cincinnati, Ohio. Before leaving, at the request of Matthews, the youth obtained some New Mexico motor vehicle license plates, and after removal of Idaho license plates, the New Mexico plates were placed upon the Ford. The police at Tucumcari, New Mexico, observed the recent painting on the red Ford and stopped Matthews for questioning. He told the police that he was Donald Richard Cox and exhibited the rent-a-car contract and Cox’s driver’s license. He later told an F.B.I. agent that" }, { "docid": "13308283", "title": "", "text": "Cir. 1969); Parks v. Wainwright, 429 F.2d 1240 (5th Cir. 1970). In any event, with no manifest intention on the part of the prosecutor to comment in such a way as to make defendant’s failure to take the stand evidence for jury consideration, and with positive instructions to the jury by the court that nothing was to be considered or presumed from this fact, and in the light of the weight of the evidence, any impropriety in the remark and the way it was made must be held to be harmless error beyond any reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Other remarks made by the prosecutor in his opening and closing arguments claimed to be prejudicial furnish no ground for reversal. The remark that Dr. Aranda’s papers and credit cards were stolen is a reasonable inference that could be drawn from the circumstances of their disappearance. Taylor v. United States, 279 F.2d 10 (5th Cir. 1960). The argument that if the car was obtained “by lies and fraud” then it was stolen is a permissible inference from the evidence. Evidence that an individual rented a car in an assumed name with false identification would permit the inference that the car was being stolen. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); Dennison v. United States, 385 F.2d 905 (5th Cir. 1967). The trial court correctly appraised the comment that the government attorney did not “enjoy prosecuting these people” in holding that it was less than a prudent remark, but not so prejudicial as to justify a mistrial. Weiss v. United States, 122 F.2d 675 (5th Cir. 1941), cert. den. 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941). The implication that defendant had a prior criminal record is supposed to have arisen from the testimony of the probation officer concerning the signature of the defendant on documents in custody of the United States Probation Office in New Orleans. The evidence was used for the purpose of comparison with the “J. V. Aranda” signed on" }, { "docid": "6227626", "title": "", "text": "and drugs. See id. (distinguishing Lynch I because robbery of drug traffickers was akin to robbery of a business engaged in interstate commerce); Atcheson, 94 F.3d at 1243 (defendants’ use of interstate telephone calls created connection with interstate commerce); see also Marrero, 299 F.3d at 656 (finding sufficient interstate nexus where defendants lured drug dealers across state lines on pretext). 4. Pizziehiello testified that Lynch killed Carreiro in Montana with a firearm that Lynch had transported from Las Vegas to Montana. Lynch returned to Las Vegas from Montana with the firearm. 5. After the robbery, Lynch and Pizzi-chiello used Carreiro’s debit card in Montana, Utah, and Nevada to withdraw Carreiro’s money from his Las Vegas Credit Union account. See Atcheson, 94 F.3d at 1243 (noting that obtaining and attempting to use out of state credit cards and ATM cards created a sufficient potential effect on interstate commerce). 6. The use of the debit card required the use of interstate communications from the source of the use, to Las Vegas, to Kansas, back to Las Vegas, and back to the place of withdrawal. See id. 7. Lynch and Pizziehiello traveled from Montana through Utah and back to Nevada in Carreiro’s stolen truck. 8. On the return trip to Nevada from Montana, Lynch and Pizziehiello rented a U-Haul truck in Utah to transport Carreiro’s disabled truck from Utah to Nevada. Based on the foregoing, we conclude that there was sufficient evidence of a direct effect on interstate commerce to satisfy the Hobbs Act. We also determine that this conclusion is not barred by the law of the case doctrine, as the prior panel never reached a conclusion regarding the sufficiency of the evidence question that was presented to it in the prior appeal. See, e.g., United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986) (noting that law of the case generally precludes reconsideration of legal questions previously decided ). Lynch also contends that since Lynch I adopted the Collins indirect effect on interstate commerce test, a new trial is required with instructions containing the Collins test. However, since we have determined" }, { "docid": "21298727", "title": "", "text": "of January 29, 2006. Trooper Roby testified that immediately ' after his initial look at the document, he believed the document affixed to the passenger side windshield was issued from the Nevada Department of Motor Vehicles. Jaime then gave Trooper Roby his California driver’s license and the rental documentation for the vehicle. The rental documentation revealed that the vehicle was rented in Las Vegas, Nevada, by Nunez. Jaime was listed as an authorized additional driver on the rental agreement. Trooper Roby explained that he had stopped the vehicle because the vehicle had no license plates. He stated that he would have to take a look at the “sticker” to see if it was expired “or what the story is with that.” After examining the rental documentation for the date, make, model, VIN number and other identifying information, Trooper Roby directed Jaime to the front passenger seat of his patrol car to issue a written warning and to further inspect the rental documentation. While he reviewed the paperwork, ran Jaime’s driver’s license and performed a criminal history check, Trooper Roby conversed with Jaime about his travel activities and plans. Jaime told Trooper Roby that he and his two nephews, Ricardo and Nunez, were on their way to a family wedding in Chicago. He said they traveled from El Centro, California, to Las Vegas, Nevada, in Nunez’s truck. Jaime stated that the three gambled at the Queen’s Casino, spent the night in Las Vegas, and rented the vehicle in Las Vegas. Dispatch then advised Trooper Roby that Jaime’s driver’s license was valid and he had no active warrants. However, dispatch also advised Trooper Roby that Jaime had a history of an immigration violation charge, several marijuana smuggling charges, an assault charge and a drunk driving conviction. Trooper Roby advised Jaime that the permit on the windshield looked “okay.” Roby further explained that, although it was not Jaime’s fault, the vehicle needed license plates. Trooper Roby then left Jaime in the patrol car and spoke with the passengers, Ricardo and Nunez, obtained their driver’s license and identification cards, and discussed the details of" }, { "docid": "13308291", "title": "", "text": "car in Vancouver and in Louisiana, he argues there was no evidence to place the defendant in the car between those points. Even disregarding the evidence of the gas charges to Dr. Aranda’s credit card, the jury was permitted to draw the inference that the defendant transported the car in interstate commerce. United States v. Rawls, 421 F.2d 1285 (5th Cir. 1970). Affirmed. . The bills traced the travels of the vehicle down to Sherman Oaks, California, to Las Vegas, Nevada, through Kingman, Arizona, and Sonora, Texas, to New Orleans, Louisiana. Dr. Aranda also received a bill for an airplane ticket dated October 22, 1969, from Montreal to Vancouver. . The wife identified the car as a green 1970 Pontiac with Canadian license plates. . When arrested, the defendant had in his possession cards of Jacob V. Aranda, including the New York driver’s license used to rent the Pontiac from Avis. . The defendant’s mother saw him driving a dark, late model automobile in Las Vegas, Nevada, on or about October 27, 1969. That is the same date the Esso credit card charges place the automobile bearing the British Columbia license plates in Las Vegas. . Argument by the GOVERNMENT to the Jury: “There is a presumption in the law that any man who is found in possession of a recently stolen automobile or anything that has been recently stolen is presumed to know that it was stolen. He is presumed, if it’s a car that has been brought in interstate commerce, he is presumed to have stolen it, himself— MR. CONNIOK: I object to that and I don’t think that’s— THE COURT: I think you’d better let me charge the jury on the law and not elaborate on that. Just argue the facts, because while I think substantially what you are saying is true, I would like to balance it with certain countervailing positions that would be made out. So, at this point, I will sustain the objection. MR. HOMES: Sir, Your Honor, I would like to clarify this for the jury, the fact is, of course, that the" }, { "docid": "6227613", "title": "", "text": "Piz-zichiello withdrew money from Carreiro’s Las Vegas Federal Credit Union account by using Carreiro’s debit card at a Montana ATM. The pair then drove Carreiro’s truck from Montana back to Las Vegas, traveling from Montana through Wyoming and into Utah. On the trip, Lynch and Pizzichiello used Carreiro’s debit card to withdraw money electronically from Car-reiro’s credit union account. Each of these withdrawals required electronic contact from the place of withdrawals in Montana, Utah, and Nevada with computer servers in Nevada and Kansas through the use of interstate telephone lines. While driving through Utah, Carreiro’s truck broke down and Lynch and Pizzichiello rented a vehicle to haul the truck back into Las Vegas. Upon their return, Lynch and Pizzichiello used Carreiro’s debit card one last time to withdraw the remaining balance in the credit union account. Lynch then repainted Carreiro’s truck, which, at the time of his arrest, was in Lynch’s possession. When Carreiro failed to return to Las Vegas, Carreiro’s family and friends became concerned and contacted the Las Vegas Police Department. An investigation ensued. The assigned detectives interviewed Lynch and Pizzichiello and determined that their statements about Carreiro were inconsistent. Thereafter, the Las Vegas detectives, through the Clark County District Attorney’s office, sought and obtained a court order authorizing the interception of Lynch and Piz-zichiello’s conversations along with the installation of a pen register and trap and trace device. The wiretaps produced recorded conversations between Lynch and Pizzichiello that established their complicity in the murder and robbery of Carrei-ro. The detectives also established the use of Carreiro’s debit card by Lynch and Pizzichiello in Montana, Utah, and Nevada. In May 1996, the burned remains of Carreiro’s body were found near the cabin of Lynch’s father in Montana. Lynch and Pizzichiello were charged and separately convicted for Carreiro’s murder in a Montana state court. Both defendants were sentenced to life imprisonment. Those convictions were reversed by the Montana Supreme Court in 1999 by reason of a Montana rule that flatly prohibits the use at trial of non-consensual electronic surveillance of oral and wire communications, even if properly authorized by" }, { "docid": "13308290", "title": "", "text": "stated in the presence of the jury while the witness was on the stand that the question of whether the defendant signed the documents was for the jury, the defendant asserts that the comments were directed to counsel and not to the jury. However, no objection or request for instruction was ever made by the defendant concerning this point. Any reversal must be based on plain error. United States v. Socony-Vacuum Co., 310 U.S. 150, 238, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Since the jury heard that the question of the signature on the documents was for their determination, we cannot say that the failure to instruct them further “was so palpably flagrant as to affect [the defendant’s] substantive rights and constituted plain error under F.R.Crim.P. 52(b).” United States v. Toler, 440 F.2d 1242 (5th Cir. 1971); see United States v. Swan, supra. III. The defendant’s final contention that there was insufficient evidence of interstate transportation is without merit. Although the defendant apparently concedes there was sufficient evidence to tie the defendant with the car in Vancouver and in Louisiana, he argues there was no evidence to place the defendant in the car between those points. Even disregarding the evidence of the gas charges to Dr. Aranda’s credit card, the jury was permitted to draw the inference that the defendant transported the car in interstate commerce. United States v. Rawls, 421 F.2d 1285 (5th Cir. 1970). Affirmed. . The bills traced the travels of the vehicle down to Sherman Oaks, California, to Las Vegas, Nevada, through Kingman, Arizona, and Sonora, Texas, to New Orleans, Louisiana. Dr. Aranda also received a bill for an airplane ticket dated October 22, 1969, from Montreal to Vancouver. . The wife identified the car as a green 1970 Pontiac with Canadian license plates. . When arrested, the defendant had in his possession cards of Jacob V. Aranda, including the New York driver’s license used to rent the Pontiac from Avis. . The defendant’s mother saw him driving a dark, late model automobile in Las Vegas, Nevada, on or about October 27, 1969. That is" }, { "docid": "4223051", "title": "", "text": "car pulling onto the shoulder and its rear lamp signaling a right lane change. The car stops on the shoulder of the exit ramp. As it is dark, Trooper Nicholas is using his flashlight when he approaches the driver’s side. He asks for the driver’s license and paperwork. He then explains that while coming up from behind he observed the car drive off the edge of the road and asks the driver, who is later identified as Crystal Blanchard, if she’s been driving for some time. The driver replied affirmatively saying they were coming from Minnesota. Trooper Nicholas requests the passenger’s license or identification and inquires if the car is a rental vehicle. Learning that it has been rented, Nicholas requests the rental papers and asks the passenger, who is later identified as Robert Jones, if he rented car. Jones replies that his name should appear on the rental papers. Trooper Nicholas then informs the driver that he’s not going to write her a ticket but directs her to join him in the patrol car, which she does. While taking her seat in the patrol car, Ms. Blanchard volunteers that she’s been driving for awhile. In response to a series of questions from Trooper Nicholas, Ms. Blanchard discloses that the passenger is her boyfriend and they are going home to Minnesota from a two-day vacation in Las Vegas, Nevada, and are returning early as her mother is keeping her son and had telephoned that her son was ill. Ms. Blanchard identifies the lessee on the rental car agreement as a cousin of her boyfriend. Trooper Nicholas thanks the driver and asks her to have her boyfriend join him in the patrol car. In the meantime, Trooper Nicholas radios dispatch with license and identification numbers. Trooper Nicholas repeats his series of questions and receives similar answers from the passenger Jones. Jones says his cousin rented the car, as he did not have a credit card to secure it. Jones also explains his dry coughs to having been asleep when the trooper pulled them over. Trooper Nicholas instructs Jones to return to" }, { "docid": "6227625", "title": "", "text": "the cocaine to sell. Marrero held that the interstate commerce element was established: The dealers’ business was “in commerce” not only because it bought its merchandise (cocaine) from out of state but also because conducting the business involved crossing state lines when the dealers came to Chicago to try to buy drugs from the defendants. Id. With the foregoing guidance in mind, we have no hesitation in finding that the evidence in this case, construed as it must be in favor of the government, clearly established that Lynch’s actions, accompanied by Pizziehiello, had a direct effect on interstate commerce: 1. Lynch, Pizziehiello, and Carreiro jointly participated in the illegal drug trafficking business in Las Vegas, Nevada, and their trip to Montana involved the interstate transportation of illegal drugs. See United States v. Rodriguez, 360 F.3d 949 (9th Cir.2004). 2. Lynch traveled to Montana in a vehicle rented in Nevada. 3. After his arrival in Montana, Lynch used interstate telephone lines to lure Carreiro from Nevada to Montana for the purpose of robbing him of money and drugs. See id. (distinguishing Lynch I because robbery of drug traffickers was akin to robbery of a business engaged in interstate commerce); Atcheson, 94 F.3d at 1243 (defendants’ use of interstate telephone calls created connection with interstate commerce); see also Marrero, 299 F.3d at 656 (finding sufficient interstate nexus where defendants lured drug dealers across state lines on pretext). 4. Pizziehiello testified that Lynch killed Carreiro in Montana with a firearm that Lynch had transported from Las Vegas to Montana. Lynch returned to Las Vegas from Montana with the firearm. 5. After the robbery, Lynch and Pizzi-chiello used Carreiro’s debit card in Montana, Utah, and Nevada to withdraw Carreiro’s money from his Las Vegas Credit Union account. See Atcheson, 94 F.3d at 1243 (noting that obtaining and attempting to use out of state credit cards and ATM cards created a sufficient potential effect on interstate commerce). 6. The use of the debit card required the use of interstate communications from the source of the use, to Las Vegas, to Kansas, back to Las Vegas," }, { "docid": "21298728", "title": "", "text": "history check, Trooper Roby conversed with Jaime about his travel activities and plans. Jaime told Trooper Roby that he and his two nephews, Ricardo and Nunez, were on their way to a family wedding in Chicago. He said they traveled from El Centro, California, to Las Vegas, Nevada, in Nunez’s truck. Jaime stated that the three gambled at the Queen’s Casino, spent the night in Las Vegas, and rented the vehicle in Las Vegas. Dispatch then advised Trooper Roby that Jaime’s driver’s license was valid and he had no active warrants. However, dispatch also advised Trooper Roby that Jaime had a history of an immigration violation charge, several marijuana smuggling charges, an assault charge and a drunk driving conviction. Trooper Roby advised Jaime that the permit on the windshield looked “okay.” Roby further explained that, although it was not Jaime’s fault, the vehicle needed license plates. Trooper Roby then left Jaime in the patrol car and spoke with the passengers, Ricardo and Nunez, obtained their driver’s license and identification cards, and discussed the details of their trip with them. The passengers provided Trooper Roby with a different account of the trip than did Jaime. For example, the passengers said that they gambled only briefly while in Las Vegas, did not spend the night in Las Vegas, and named a different casino as the location of their gambling activities. Trooper Roby then returned to his vehicle and conducted a driver’s license and warrant check on the two passengers. While waiting for dispatch to provide the requested information on the passengers, Trooper Roby began filling out a written warning and asked Jaime detailed questions about his travel plans, the exact date of the wedding, and his criminal history. Jaime told the officer about his past driving under the influence and marijuana smuggling charges. While the passengers said that the wedding was on Friday, Jaime told the trooper that the wedding was on Saturday. When he was advised that the passengers had no outstanding warrants, Trooper Roby completed the written warning, asked Jaime to sign for the document and handed the warning ticket" }, { "docid": "13308278", "title": "", "text": "RONEY, Circuit Judge: This is an appeal from a jury conviction of transporting a stolen 1970 Pontiac from Vancouver, British Columbia, to Arabi, Louisiana, knowing it to have been stolen in violation of Section 2312, Title 18, United States Code (The National Motor Vehicle Theft Act). The defendant attacks the conviction on three grounds: (1) that prejudicial remarks of the prosecutor deprived him of a fair trial; (2) that handwriting specimens were improperly introduced in evidence, or in the alternative, that the jury was not properly advised as to the weight to be given the standard writings; and (3) that there was insufficient evidence to prove that defendant transported the vehicle from British Columbia to Louisiana. We affirm. The 1970 Pontiac was owned by Avis Rent A Car. It was rented the evening of October 23, 1969, at the Vancouver Airport to be used in the Province of British Columbia and the State of Washington and to be returned not later than October 30, 1969. The name “J. V. Aranda” appeared on the rental agreement as the signature of the renter. Dr. Jacob V. Aranda testified that around midnight of October 19, 1969, while dancing in Montreal, Quebec, he was bumped in the back and that ten minutes later he noticed his wallet was gone. He reported the incident to the Montreal police. The wallet contained many personal documents, including credit cards and driver’s licenses. Dr. Aranda’s New York driver’s license was used for identification in renting the Pontiac. Dr. Aranda also testified that the number of one of his credit cards, which was not recovered, looked like the number of the card used to rent the Pontiac. He received gasoline bills, which had been charged to his Esso credit card, bearing the same license number as that on the 1970 Pontiac. He testified that the signature on the bills and the rental agreement were the same. To connect the defendant with the Pontiac in Vancouver, the Government proved that the defendant’s fingerprint was found on the rental agreement, and presented expert testimony that the defendant signed “J. V. Aranda”" }, { "docid": "6227612", "title": "", "text": "pick him up after Carreiro received his money and to bring along a pound of methamphetamine. Lynch intended to rob Carreiro of these drugs and his money once Carreiro arrived in Montana. Carreiro took the bait. After receiving his workers’ compensation check and depositing a portion of it in the Las Vegas Federal Credit Union, he and Pizzichiello traveled in Carreiro’s truck from Las Vegas to Lynch’s father’s residence in rural Montana, bringing with them a quantity of methamphetamine and marijuana and a pager Carreiro used in the drug business. A prosecution witness at Lynch’s trial, Pizzichiello testified that the day after he and Carreiro arrived at Lynch’s father’s cabin in Montana, Lynch shot and killed Carreiro. Lynch took Carreiro’s personal effects from his wallet including his debit card from the Las Vegas Federal Credit Union. Lynch also took other personal effects from Carreiro’s body including his shoes and the keys to Carreiro’s pick-up truck. To cover up the robbery-murder, Lynch proceeded to burn Carreiro’s body in a metal barrel. Before leaving Montana, Lynch and Piz-zichiello withdrew money from Carreiro’s Las Vegas Federal Credit Union account by using Carreiro’s debit card at a Montana ATM. The pair then drove Carreiro’s truck from Montana back to Las Vegas, traveling from Montana through Wyoming and into Utah. On the trip, Lynch and Pizzichiello used Carreiro’s debit card to withdraw money electronically from Car-reiro’s credit union account. Each of these withdrawals required electronic contact from the place of withdrawals in Montana, Utah, and Nevada with computer servers in Nevada and Kansas through the use of interstate telephone lines. While driving through Utah, Carreiro’s truck broke down and Lynch and Pizzichiello rented a vehicle to haul the truck back into Las Vegas. Upon their return, Lynch and Pizzichiello used Carreiro’s debit card one last time to withdraw the remaining balance in the credit union account. Lynch then repainted Carreiro’s truck, which, at the time of his arrest, was in Lynch’s possession. When Carreiro failed to return to Las Vegas, Carreiro’s family and friends became concerned and contacted the Las Vegas Police Department. An investigation" }, { "docid": "9957114", "title": "", "text": "JERTBERG, Circuit Judge. This appeal is from a judgment of conviction after trial to a jury on an information charging violation of 18 U.S. C.A. § 2312, (1948). This court’s jurisdiction is founded upon 28 U.S.C.A. §§ 1291, 1294. The specification of errors relied upon by appellant is stated in his opening brief to be as follows: “I. Appellant did not have a fair trial because he did not have competent counsel as guaranteed by the Sixth Amendment to the Constitution of the United States. “II. Appellant did not have a fair trial because his rights under the Fourth Amendment to the Constitution of the United States were impinged. “III. It was prejudicial and reversible error to admit the confessions and admissions of appellant which were made while appellant was in custody. “IV. The evidence is not sufficient to sustain a conviction.” Before considering the specification of errors, we will first summarize the testimony which was before the jury for consideration. Appellant, a French Canadian, rented a 1964 Dodge from the Hertz Drive-UR-Self Corporation in Quebec City, Canada on December 27, 1963. Athough the car was rented for a period of only one day, appellant drove the Dodge south to Florida and then to California where he was involved in an accident. After attempting unsuccessfully to sell the car to the repairman who was engaged to repair the damage, appellant abandoned it and rented a 1964 Ford automobile from Avis-Rent-A-Car System, Incorporated in San Francisco on February 16, 1964. The rental agreement signed by appellant was received in evidence. It is dated February 16, 1964 and states that the vehicle will be returned not later than February 17, 1964 to San Francisco and that the vehicle would be used in the State of California. Appellant removed the California license plates from the Ford and replaced them with the Canadian plates from the Dodge. He drove to Pasadena, California where he stayed for approximately ten days. He then drove the Ford to Las Vegas, Nevada and finally to Phoenix, Arizona, arriving 16 days after renting the car. Upon appellant’s statement to" }, { "docid": "22050611", "title": "", "text": "recital of the facts of this case, assuming the jury’s verdict rested on those findings which are capable of sustaining the verdict carries conviction. According to the indictment, the government had the burden of proving (1) that appellant received the described vehicle; (2) that such vehicle was moving as interstate commerce at the time it was received; (3) that it had been stolen, and (4) that appellant had the requisite knowledge. Appellant does not contest the proof that he received the described automobile, since he was undisputedly in possession of the car when arrested in Jackson ville on October 3, 1964. He does, however, contend that the evidence is insufficient to prove that the automobile “was moving as, was a part of and which constituted interstate commerce” at the time he received it. This argument runs afoul of Corey v. United States, 9 Cir. 1962, 305 F.2d 232, where the defendant was prosecuted under the National Stolen Property Act (18 U.S.C.A. §§ 2314 and 2315) which contains a similarly worded interstate commerce provision. In that case, jewelry was stolen in Las Vegas, Nevada, and was shipped from Los Angeles, California, to San Jose, California, the defendant being charged with concealing the jewels, knowing them to be stolen. His contention was that the stolen property had come to rest in California prior to its transportation from Los Angeles to San Jose and that it was therefore no longer a part of interstate commerce. In rejecting this argument, the Court stressed the factual nature of such a determination. “Once an interstate journey has begun, the question of whether it has come to an end is generally one of fact for the jury. The jury may find that property remained in interstate commerce although it has passed its initial stopping place within the state of destination. This is true despite proof that the goods traveled a circuitous route, or lack of proof as to the precise means of interstate transportation utilized. * * * “It is immaterial that defendants’ concealment of the property was confined to a portion of the interstate journey which" }, { "docid": "13308289", "title": "", "text": "at the time of an individual’s release from federal custody. The original is given to the releasee. The releasee is then to fill out the second section upon arrival in the district of his residence and to give the form to the local U. S. Probation Officer. Apparently aware of possible prejudice to the defendant, the Government did not have the probation officer detail the reporting procedures. However, the probation officer did testify that “it is very unlikely that anyone other than Billy Dean White prepared and executed these documents.” We construe this as a shorthand comment on the nature of the Probation Office reporting procedures. Considering the character of the documents and the testimony of the probation officer, we hold that the ruling of the trial court that he was satisfied as to the proof of the genuineness of the exemplars was fairly supported by the evidence. The question then became a matter for the jury. However, the defendant contends that the jury was not properly instructed on that issue. Although the trial court stated in the presence of the jury while the witness was on the stand that the question of whether the defendant signed the documents was for the jury, the defendant asserts that the comments were directed to counsel and not to the jury. However, no objection or request for instruction was ever made by the defendant concerning this point. Any reversal must be based on plain error. United States v. Socony-Vacuum Co., 310 U.S. 150, 238, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Since the jury heard that the question of the signature on the documents was for their determination, we cannot say that the failure to instruct them further “was so palpably flagrant as to affect [the defendant’s] substantive rights and constituted plain error under F.R.Crim.P. 52(b).” United States v. Toler, 440 F.2d 1242 (5th Cir. 1971); see United States v. Swan, supra. III. The defendant’s final contention that there was insufficient evidence of interstate transportation is without merit. Although the defendant apparently concedes there was sufficient evidence to tie the defendant with the" } ]

[ { "docid": "22394615", "title": "", "text": "and other costs of litigating. It has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. See Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 392, 400 (1982); Kirkland v. New York State Dept. of Correctional Services, 711 F. 2d 1117, 1126 (CA2 1983), cert. denied, 465 U. S. 1005 (1984). Here, Local 93 took full advantage of its opportunity to participate in the District Court’s hearings on the consent decree. It was permitted to air its objections to the reasonableness of the decree and to introduce relevant evidence; the District Court carefully considered these objections and explained why it was rejecting them. Accordingly, “the District Court gave the union all the process that [it] was due . . . .” Zipes, supra, at 400. Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting interve-nors; if properly raised, these claims remain and may be litigated by the intervenor. 3B Moore ¶ 24.16[6], p. 181; see also, United States Steel Corp. v. EPA, 614 F. 2d 843, 845-846 (CA3 1979); Wheeler v. American Home Products Corp., 563 F. 2d 1233, 1237-1238 (CA5 1977). And, of course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree. See, e. g., United States v. Ward Baking Co., 376 U. S. 327 (1964); Hughes v. United States, 342 U. S. 353 (1952); Ashley v. City of Jackson, 464" } ]

[ { "docid": "1334555", "title": "", "text": "negotiations in order to avoid subsequent suits and dissatisfaction caused by exclusion. In light of the due process underpinnings of preclusion law, and in light of public policy considerations, we are unwilling to recognize such an exception. Thus, even if a consent decree purports to affect the rights of third parties, those parties are not bound by the terms of the decree unless their interests were adequately represented by a party to the decree. See Local No. 93 v. City of Cleveland, — U.S. —, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986) (“A court’s approval of a consent decree between some of the parties ... cannot dispose of the valid claims of nonconsent-ing [parties]; if properly raised, these claims remain and may be litigated by the [nonconsenting parties].”). The policy of encouraging voluntary affirmative action plans must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 589 n. 4, 104 S.Ct. 2576, 2593 n. 4, 81 L.Ed.2d 483 (1984) (O’Connor, J., concurring) (“The policy favoring voluntary settlement does not, of course, countenance unlawful discrimination against existing employees.”). The individual plaintiffs were parties to neither the City decree nor the Board decree. Indeed, their Title VII claims did not accrue until after the decrees became effec tive and the challenged promotions were made; that is, their claims did not accrue until they were denied promotions. Nor did the individual plaintiffs have an identity of interest with a party to the consent decrees such that they should be treated as parties for preclusion purposes. The BFA, an organization to which the plaintiffs in the fire department belong, did attempt with two of its members to intervene in the original suits, but the court denied intervention as untimely. The BFA also filed objections as amicus curiae at the fairness hearing the district court held before approving the decrees. That participation, however, hardly made the BFA a party to the consent decrees. As we have indicated above, a consent decree" }, { "docid": "21683297", "title": "", "text": "478 U.S. at 529, 106 S.Ct. 3063; see also Williams, 720 F.2d at 921 (“The reasonableness hearing is a forum for all interested parties to comment on the proposed decree.”). However, the Supreme Court also warned that: “[i]t has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation ... [an intervenor] does not have the power to block the decree merely by withholding its consent.” Local No. 93, Int'l Ass’n of Firefighters, at 528-29, 106 S.Ct. 3063. Indeed, the Supreme Court in Local 98 “did not create a broad right of interve-nors to a quasi-trial, but rather simply required a district court conducting a fairness hearing to allow a party to a proposed settlement agreement to ‘present evidence and have its objections heard.’” United States v. City of Hialeah, 140 F.3d 968, 989 n. 12 (11th Cir.1998) (quoting Local No. 93, Int’l Ass’n of Firefighters, 478 U.S at 529, 106 S.Ct. 3063); Edwards v. City of Houston, 37 F.3d 1097, 1119 (5th Cir.1994) (“Neither intervenors nor objectors are entitled to hold consent decrees hostage and require a full-blown trial in lieu of a fairness hearing.”). Furthermore, the district court may limit the fairness hearing “to whatever is necessary to aid it in reaching an informed, just and reasoned decision.” United States v. Oregon, 913 F.2d 576, 582 (9th Cir.1990) (quoting Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977)). In sum, although intervenors are entitled to a fairness hearing on remand, we reject intervenors’ suggestion at oral argument that the fairness hearing must entail the entire panoply of protections afforded by a full-blown trial on the merits. The principles articulated above belie such an approach. The fairness hearing is a forum for the intervenors to voice their objections; however, the district court has the discretion to limit the fairness hearing, and the consideration of those objections, so long as such limitations are consistent with the ultimate goal of determining whether the proposed settlement is" }, { "docid": "22331417", "title": "", "text": "(footnote omitted). As is true with most rules, this one is subject to certain exceptions: We have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party. Additionally, where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy and probate, legal proceedings may terminate preexisting rights if the scheme is otherwise consistent with due process. Id. at 762 n. 2, 109 S.Ct. at 2184 n. 2 (citations omitted). Within this language lies the impetus for § 2000e-2(n). . Section 2000e-2(n) facilitates the participation of persons such as the objectors here in Title VII litigation or consent decree proceedings because parties who resolve litigation through settlement may not ordinarily dispose of the claims of a third person without that person's agreement. \"A court’s approval of a consent decree between some of the parties therefore cannot dispose . of the valid claims of non-consenting intervenors....” Local No. 93, Int'l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 529, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986). In Wilks, too, the Court emphasized that A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly \"settle,” voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. This is true even if the second group of employees is a party to the litigation [quoting Fire Fighters, supra ]. 490 U.S. at 768, 109 S.Ct. at 2188. When Congress changed the Willcs rule of mandatory joinder to a rule of mandatory notice, it did not alter this basic principle. Thus, if persons are improperly prevented from intervening as parties to the consent decree litigation, they should not be bound by its results. Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117-18, 85 L.Ed. 22 (1940). . At oral argument, the HPOA’s standing to appeal the district court’s denial of intervention in the underlying case" }, { "docid": "2242786", "title": "", "text": "the employee nevertheless remains free to pursue theory (2). Her contractual rights, and any other legal rights she may have against her employer, remain unimpaired. Moreover, it is well settled that no voluntary settlement — whether entered as a consent decree, approved under Rule 23(e), or agreed to in private-can dispose of the claims of a non-consenting third party. See Martin v. Wilks, 490 U.S. 755, 768, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (“A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly ‘settle,’ voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement.”); Local No. 93, 478 U.S. at 529, 106 S.Ct. 3063 (“Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor.”). The City Defendants voluntarily contracted with the Offerees and with the Government to give the Offerees retroactive seniority, but that contract cannot and does not “purport to resolve any claims the Union might have ... as a matter of contract,” id. at 530, 106 S.Ct. 3063. The Government compounds its error at the victim-identification stage. In the Government’s view, the district court should have applied the burden-shifting framework of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-76, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters, the Supreme Court held: The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied" }, { "docid": "23102899", "title": "", "text": "to the class, as well as requesting discovery of financial information from the former trustees. The Secretary, however, did not negotiate with the insurance companies or their insureds, the former trustees, concerning the amount of money to be recovered by the fund as the former trustees refused to negotiate with the Secretary at any time during the course of this litigation. Certainly, it is obvious that these defendants would have no interest in negotiating with the Secretary since the proposed settlement limited the trustees’ liability and thus it was to their benefit to argue that the Secretary’s action was barred under the doctrine of res judicata. As demonstrated by the facts in this case, the Secretary had no choice but to intervene in the private class action to protect the interest of the public in general (understandably so because the terms of the settlement anticipated the dismissal of the Secretary’s action), and thus his limited participation must not preclude him from fulfilling his statutory duty and obligation in pursuing a separate enforcement action. Further, the general rule is that the original parties to a suit may not stipulate away the rights of the intervenor: “parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting inter-venors; if properly raised, these claims remain and may be litigated by the intervenes. ... And, of course, a court may not enter a consent decree that imposes obligations on the party that did not consent to the decree.” Firefighters Local 93 v. City of Cleveland, — U.S. -, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986) (citations omitted). See also, United States v. Borden, 347 U.S. 514, 74 S.Ct. 703, 98 L.Ed. 903 (1954) (prior consent decree entered between the parties to a private antitrust suit does not preclude the government from obtaining injunctive relief against the parties in" }, { "docid": "22597991", "title": "", "text": "An intervenor does not have the right to prevent other parties from entering into a settlement agreement. Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). As the Court explained: [i]t has never been supposed that one party — whether an original party, a party that was joined later, or an interve-nor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervener is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. Thus, TURN’S consent was not a necessary precursor to the district court’s accepting the Stipulated Judgment. TURN points out that Firefighters provides an exception where “nonconsenting intervenors” have brought “valid claims” that are “properly raised.” Id. at 529, 106 S.Ct. 3063. However, as TURN itself admits, the organization “as defendants were not expected to raise claims and [its] members cannot challenge the terms of the settlements in later suits.” Instead, what TURN claims to possess is a “legally cognizable interest in protecting the refund rights of its 30,000 ratepaying members, in securing the lower rates that state law guarantees them and the stipulated judgment denies them, and in preventing the rate increases that will inevitably result from this judgment.” These interests do not amount to the kind of “valid claims” the Firefighters Court had in mind. Furthermore, TURN’S attempt to narrow the scope of the Firefighters exception as applying only to plaintiffs, and not defendants such as TURN, is unavailing because the Firefighters case clearly references “third parties]” in general. See Firefighters, 478 U.S. at 529, 106 S.Ct. 3063. In sum, TURN’S consent was not required for the district court to approve the settlement. VII Nor did the district court’s approval of the settlement deny TURN due process. TURN argues that the district court did not afford it sufficient time to submit briefs opposing the proposed settlement. District courts have “inherent" }, { "docid": "18244379", "title": "", "text": "the debtor-in-possession’s role as legal representative of the estate. See also Cybergenics, 330 F.3d at 561-62 (noting the Court’s concern in Hartford Underwriters with the debtor-in-possession’s ability to “act as a gatekeeper, weighing the potential benefits of litigation against the costs it might incur”). Our view of § 1109(b) is also consistent with circuit court decisions that have discussed § 1109(b) intervention. In Official Unsecured Creditors’ Committee v. Michaels (In re Marin Motor Oil, Inc.), 689 F.2d 445, 454-55 (3d Cir.1982), the Third Circuit recognized that § 1109(b) afforded an unconditional right to intervene in adversary proceedings, and gave intervenors broader participation rights than those generally granted amici. However, that court also expressly distinguished between “an absolute right to intervene in adversary proceedings already initiated by a ... debtor in possession” and “[the right to bring] new causes • of action in favor of creditors and committees,” and limited its holding to the former, without reaching the latter. Id. at 456 & n. 11 (internal quotation marks omitted). Similarly, a distinction can be drawn between the right to intervene in an adversary proceeding, to which appellees are plainly entitled, and the right to take ownership of the debtor’s claims in that adversary proceeding. The former does not equate to the latter. Intervenors’ claims are generally understood to be separate from those of the original parties to a proceeding. Cf. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (noting, in context of consent decree, that “[i]t has never been supposed that one party' — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation” (emphasis added)). Two lower courts within this circuit have addressed precisely the question faced here: whether the unconditional § 1109(b) right to intervene we announced in Caldor includes the right to take ownership of the debtor’s legal claims. Both courts have answered the question in the negative. In Official Committee of Unsecured Creditors of Sunbeam" }, { "docid": "1207878", "title": "", "text": "action there is no immunity.” Id. That is, immunity will not categorically apply to private actions somehow involving government action. “Passive government approval is insufficient. Private parties cannot immunize an anticompeti-tive agreement merely by subsequently requesting legislative approval.” Id. A distinction therefore exists between merely urging the government to restrain trade and asking the government to adopt or enforce, a private agreement. Government advocacy is protected by Noerr-Penning-ton immunity; seeking, governmental approval of a private agreement is not. Effexor defendants argue that the effect of the settlement agreement at issue “was dependent entirely on the action of the court” and is therefore protected.- Wyeth Br. 63. We are not persuaded. The Supreme Court explained in Local No. 93, International Association of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), that, while consent decrees are at some level judicial acts, a court’s role in entering a consent judgment differs fundamentally from its role in actually adjudicating a dispute. Id. at 519-22, 106 S.Ct. 3063. When parties pursue litigation, courts reach determinations of facts and applica ble law via the adversary process. But when courts enter consent decrees, “it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in the consent decree.” Id. at 522, 106 S.Ct. 3063. “Indeed, it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.” Id. That is because consent decrees “closely resemble contracts.” Id. at 519, 106 S.Ct. 3063. Their “most fundamental characteristic” is that they are voluntary, agreements negotiated by the parties for their own purposes. Id. at 521-22, 106 S.Ct. 3063; see id. at 522, 106 S.Ct. 3063 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes.... ” (quoting United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971))). Consequently, when parties seek to enforce agreements adopted in consent orders, courts construe terms of the settlement based on the" }, { "docid": "2242855", "title": "", "text": "S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quotation marks and modification omitted); Rodriguez de Quijos v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); United States v. Gomez, 580 F.3d 94, 104 (2d Cir.2009). . The Arroyo Intervenors assert that the Supreme Court answered this question in Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). Like so many of the parties' arguments in this case, however, this argument misconceives the case’s procedural posture. Local 93 addressed whether § 706(g) prohibits a consent decree from imposing certain .types of relief. The Supreme Court held that § 706(g) does not apply to consent decrees, or to voluntary employer action, at all. Id. at 521, 106 S.Ct. 3063. But ours is a § 703(a) case, not a § 706(g) case; the Brennan Plaintiffs do not argue — and, in light of Local 93, could not argue — that the City Defendants' implementation of the settlement agreement violates § 706(g). And' in Local 93 the High Court emphasized in several places that it was not speaking to whether the consent decree in that case was consistent with § 703(a). See id. at 517 n. 8, 106 S.Ct. 3063 (\"Nor need we decide what limits § 703 places on an employer’s ability to agree to race-conscious relief in a voluntary settlement that is not embodied in a consent decree, or what showing the employer would be required to make concerning possible prior discrimination on its part against minorities in order to defeat a challenge by nonminority employees based on § 703.\"); id. at 521 n. 11, 106 S.Ct. 3063 (\"[W]e do not suggest that voluntary action by employers or unions is outside the ambit of Title VII regardless of its effect on nonminorities.... The rights of nonminorities with respect to action by their employers are delineated in § 703 of Title VII....”); id. at 526, 106 S.Ct. 3063 (\"As noted above, the fact that the parties have consented to the relief contained in a decree" }, { "docid": "18784220", "title": "", "text": "bankruptcy code to enter an injunction that impairs a non-debtor’s contractual rights against another non-debtor. Forty-Eight has also failed to establish a right to such injunctive relief under non-bankruptcy law. Forty-Eight cites cases holding that additional insureds possess the same rights as the named insureds under an insurance policies. See, National Auto & Casualty Ins. Co., v. California Casualty Insurance Co., 188 Cal.Rptr. 670, 672, 139 Cal.App.3d 336 (2d Dist., 1983). However, these cases do not support a settlement agreement that completely abrogates the named insured’s rights under the policies. When FWC purchased the policies it assumed the risk that the policies might be exhausted by claims made by the additional insureds, not that its rights would be extinguished by a separate agreement between one of the additional insureds and the insurer. Forty-Eight also refers us to cases holding an insurer may settlem claims with some claimants even if such settlement necessarily excludes other claimants. See, Carter v. Safeco Ins. Co., 435 So.2d 1076 (La.App. 1st Cir.1983). These cases are likewise inapposite, because FWC is not a claimant but an insured. Both parties also cite Local Number 93, International Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). Forty-Eight contends that Firefighters authorized a court to bind a non-party as part of a settlement agreement. FWC argues that Firefighters prevents parties to a settlement agreement from impairing rights of a non-settling party. Firefighters involved a class action by a group of black and hispanic firefighters against the city for discrimination. A consent decree was approved over the objections of a labor union which had intervened as of right in the case. The Supreme Court determined that the labor union could not block the consent decree “merely by withholding its consent.” 478 U.S. at 529, 106 S.Ct. at 3079. Forty-Eight relies on this language to conclude that FWC cannot block this settlement agreement by withholding its consent. But the Supreme Court explained, 478 U.S. at 530, 106 S.Ct. at 3079 (emphasis added; citation omitted): [0]f course, a court may not enter a consent decree that" }, { "docid": "22597990", "title": "", "text": "may of course voluntarily submit to federal jurisdiction even though it might have had a tenable claim for abstention.”). Thus, the threshold requirements for the exercise of Buiford abstention by the district court have not been satisfied. The fact that a non-state intervening party preferred another forum is not relevant to satisfying the prerequisites for Burford abstention. Cf. Southwest Airlines Co. v. Texas Intern. Airlines, Inc., 546 F.2d 84, 93 (5th Cir.1977). “If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the ease back into the State’s own system.” Ohio Bureau of Employment Servs. v. Rodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 52 L.Ed.2d 518 (1977). The district court did not err in declining to abstain in this case. VI The district court did not exceed its authority by approving the stipulated settlement between SoCal Edison and the Commission without TURN’S consent, a decision which we review de novo. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.1992). An intervenor does not have the right to prevent other parties from entering into a settlement agreement. Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). As the Court explained: [i]t has never been supposed that one party — whether an original party, a party that was joined later, or an interve-nor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervener is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. Thus, TURN’S consent was not a necessary precursor to the district court’s accepting the Stipulated Judgment. TURN points out that Firefighters provides an exception where “nonconsenting intervenors” have brought “valid claims” that are “properly raised.” Id. at 529, 106 S.Ct. 3063. However, as TURN itself admits, the organization “as defendants were not expected to raise claims" }, { "docid": "21683296", "title": "", "text": "included in their motion to intervene a lengthy critique of the consent decree, the district court did not address the intervenors’ substantive arguments to set aside the decree. Rather, the district court simply ordered the intervenors’ notices of appeal to be filed as of the date on which they had filed their motion to intervene. In fact, it was the plaintiffs who filed a motion to reconsider asking the court to hold a hearing on the intervenors’ motion to modify or set aside the Revised Consent Decree, which the court, apparently, never acted upon. The intervenors did have an opportunity to raise their objections to plaintiffs’ motion to modify the Revised Consent Decree; however, the record squarely indicates that they were never provided a forum to present their arguments as to why the consent decree should be set aside. The Supreme Court has held that “an intervenor is entitled to present evidence and have its objections heard at [a] hearing[ ] on whether to approve a consent decree.” Local No. 93, Int'l Ass’n of Firefighters, 478 U.S. at 529, 106 S.Ct. 3063; see also Williams, 720 F.2d at 921 (“The reasonableness hearing is a forum for all interested parties to comment on the proposed decree.”). However, the Supreme Court also warned that: “[i]t has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation ... [an intervenor] does not have the power to block the decree merely by withholding its consent.” Local No. 93, Int'l Ass’n of Firefighters, at 528-29, 106 S.Ct. 3063. Indeed, the Supreme Court in Local 98 “did not create a broad right of interve-nors to a quasi-trial, but rather simply required a district court conducting a fairness hearing to allow a party to a proposed settlement agreement to ‘present evidence and have its objections heard.’” United States v. City of Hialeah, 140 F.3d 968, 989 n. 12 (11th Cir.1998) (quoting Local No. 93, Int’l Ass’n of Firefighters, 478 U.S at 529," }, { "docid": "23188920", "title": "", "text": "state law to represent the state and bring prosecutions under the statute there at issue, Chief Justice Phillips enjoys neither independent authority over judicial apportionment nor express authority to represent the state. . This proposition applies equally to Judges Entz and Wood. Further, because the proposed consent decree will not affect their constituencies, Judges Entz and Wood do not gain standing to challenge the consent decree because of their status as office holders. City of Cleveland, 478 U.S. at 528-29, 106 S.Ct. at 3079; City of Miami, 664 F.2d at 447 (\"the parties to litigation are not to be deprived of the opportunity to compose their differences by objections that find no basis in prejudice to the objector”). Finally, the majority opines that the status of Judges Entz and Wood as voters in Harris County somehow clothes them with authority to block a settlement favored by competent state authorities. While the district courts certainly should permit input from such intervenors when considering entry of a consent decree, to accord them what amounts to a veto, as the majority does, would effectively preclude settlement of any Section 2 litigation'— an absurd and unconscionable result which I refuse to embrace. See City of Cleveland, 478 U.S. at 529, 106 S.Ct. at 3079 (\"[Wjhile an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.”). Extending the majority’s analysis would result in any voter being able to block settlement of any suit against the state or one of its subdivisions. That simply cannot be. See Apache Bend Apts. v. United States, 987 F.2d 1174 (5th Cir.1993) (era banc). KING, Circuit Judge, with whom POLITZ, Chief Judge, and JOHNSON, Circuit Judge, join, dissenting: The majority ably accomplishes what it set out to do in this case: reach the merits of this appeal so that it can overhaul the Voting Rights Act. Indeed, from its initial decision to deny the motion to remand filed by the Plaintiffs and the State" }, { "docid": "23188998", "title": "", "text": "Consent to the Settlement? The majority also offers a second ground for refusing to remand the case for a hearing on the proposed settlement: that not all of the “defendants” have consented to the remand or to the settlement. In particular, the majority argues that, because the two intervening district judges, Judge Wood and Judge Entz, as well as Chief Justice Phillips, object to the settlement, the settlement could not be approved and therefore the ease should not be remanded. Again, I disagree. In my view, by obtaining the consent of the Texas legislature, the Texas Attorney General did as much as (or perhaps more than) he was required to do under Texas law. 1. Not the Intervening Judges Judge Wood and Judge Entz’s objections to the settlement do not preclude a remand. The Supreme Court’s decision in Local Number 93, International Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), could not be clearer on this point. There, the court held that a union, who intervened as a matter of right, could not block the entry of a consent decree merely by withholding its consent to the settlement. The Court stated: It has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearing on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. Id. at 528-29, 106 S.Ct. at 3079. Admittedly, a court may not enter a consent decree which has the effect of disposing “of the valid claims of noneonsenting interve-nors.” Id. at 529, 106 S.Ct. at 3079. Nor may a court “enter a consent decree that imposes obligations on a party that did not consent to the decree.” Id. But these concerns are not implicated by the settlement proposed in this case. ■ The proposed settlement" }, { "docid": "23188999", "title": "", "text": "as a matter of right, could not block the entry of a consent decree merely by withholding its consent to the settlement. The Court stated: It has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearing on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. Id. at 528-29, 106 S.Ct. at 3079. Admittedly, a court may not enter a consent decree which has the effect of disposing “of the valid claims of noneonsenting interve-nors.” Id. at 529, 106 S.Ct. at 3079. Nor may a court “enter a consent decree that imposes obligations on a party that did not consent to the decree.” Id. But these concerns are not implicated by the settlement proposed in this case. ■ The proposed settlement agreement in this case does not dispose of the “valid claims” of Judge Wood and Judge Entz. They are only permissive intervenors. See New Orleans Public Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984); see also Clements v. League of United Latin American Citizens, 884 F.2d at 187 (equating intervenor of right with “real party in interest”). As such, they do not have the status of an original party. Moreover, as I read the record, they were permitted to intervene only to protect their tenure as sitting elected judges. Thus, although I agree with the majority that the intervening judges do not, at this time, have to independently satisfy article III standing requirements, their mere status in this lawsuit as permissive intervenors does not, in my view, serve to give them “claims” or “defenses” in the sense contemplated by Firefighters. Nor does the proposed settlement place any “obligations” on Judge Wood or Judge Entz. On the contrary," }, { "docid": "22936197", "title": "", "text": "intervene as of right, we think it was entirely appropriate for the district court to permit the District Attorney to be heard on the terms of the consent decree, however his status may be otherwise legally characterized. Indeed, permitting persons to appear in court, either as friends of the court or as interveners for a limited purpose, may be advisable where third parties can contribute to the court’s understanding of the consequences of the settlement proposed by the parties. See, e.g., Kirkland v. New York State Dept. of Correctional Services, 711 F.2d 1117, 1125-27 (2d Cir.1983), cert. denied sub nom. Althiser v. New York State Dept. of Correctional Services, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984) (permitting nonminority employees to intervene to object to the affirmative action provisions in a proposed consent decree). III. The District Attorney also appeals the order of the district court approving the proposed consent decree. The source of the district court’s authority to enter a consent decree is the parties’ agreement. See Local No. 93, International Association of Firefighters v. City of Cleveland, — U.S. -, 106 S.Ct. 3063, 3076, 92 L.Ed.2d 405 (1986). As the Supreme Court has stated, Consent decrees are entered into by parties after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Because a consent decree is an agreement between the parties to settle a case, one who is properly denied intervention cannot appeal the merits of the case. See Commonwealth of Pennsylvania v. Rizzo, supra, 530 F.2d at 508. The District Attorney’s appeal of the merits, therefore, must be dismissed. In dismissing the District Attorney’s appeal of the" }, { "docid": "9379177", "title": "", "text": "fall within the pleadings’ general scope. 34 F.3d at 1089-91. Likewise, unpleaded claims that could not be brought against third-party defendants pursuant to a case management order (CMO) were appropriately included in the consent decree. Id. at 1091. Here, the purported failure to file complaints contemporaneous with the consent decrees does not defeat the legitimacy of the settlements. As we wrote in Charles George: [T]he Supreme Court has made clear that there is no per se prohibition against consent decrees that exceed the possible bounds of a decision issued directly by the trial court. Because a consent decree is animated not only by the parties’ legal claims but also by the parties’ consent, a court is “not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after trial.” Id. at 1091 (quoting Firefighters, 478 U.S. at 525, 106 S.Ct. 3063). The district court allowed the inclusion of parties not sued by the United States in the consent decrees, finding that UTC’s contribution claims “are based on the same body of evidence and raise the same issues as the United States’ claims against the settling third and fourth-party defendants.” Davis II, 11 F.Supp.2d at 188. Like a settlement that is greater in scope than the originally pled claims, the inclusion of various third and fourth-party defendants, as well as interested non-parties, is permissible pursuant to Firefighters. Indeed, any conclusion to the contrary would disrupt the goals of CERCLA, which seeks early settlement with as many PRPs as possible to further expeditious remediation. 3. Fairness a. Procedural Assessing fairness in the CERCLA settlement context has both procedural and substantive dimensions. “To measure procedural fairness, a court should ordinarily look to the negotiation process and attempt to gauge its candor, openness, and bargaining balance.” Cannons, 899 F.2d at 86. The EPA has ample authority to structure its settlement negotiations, including “broad discretion to structure classes of PRPs.” Id. A finding of procedural fairness may also be an acceptable proxy for substantive fairness, when other circumstantial indicia of fairness are present. See Charles" }, { "docid": "18784221", "title": "", "text": "not a claimant but an insured. Both parties also cite Local Number 93, International Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). Forty-Eight contends that Firefighters authorized a court to bind a non-party as part of a settlement agreement. FWC argues that Firefighters prevents parties to a settlement agreement from impairing rights of a non-settling party. Firefighters involved a class action by a group of black and hispanic firefighters against the city for discrimination. A consent decree was approved over the objections of a labor union which had intervened as of right in the case. The Supreme Court determined that the labor union could not block the consent decree “merely by withholding its consent.” 478 U.S. at 529, 106 S.Ct. at 3079. Forty-Eight relies on this language to conclude that FWC cannot block this settlement agreement by withholding its consent. But the Supreme Court explained, 478 U.S. at 530, 106 S.Ct. at 3079 (emphasis added; citation omitted): [0]f course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree. However, the consent decree entered here does not bind Local 93 to do or not to do anything. It imposes no legal duties or obligations on the Union at all; only the parties to the decree can be held in contempt of court for failure to comply with its terms. Moreover, the consent decree does not purport to resolve any claims the Union might have under the Fourteenth Amendment, or as a matter of contract. The decree sought here would purport to resolve claims FWC might have under its contracts of insurance. So Firefighters does not support the entry of that order. The parties have also argued about whether the policies have been exhausted and whether Forty-Eight’s right to payment under the policies has accrued. They submitted supplemental authority on this issue following the Seventh Circuit’s opinion in UNR Industries Inc., v. Continental Casualty Company, 942 F.2d 1101 (7th Cir.1991). That decision may support the argument that insurance proceeds can be reached and" }, { "docid": "23102900", "title": "", "text": "general rule is that the original parties to a suit may not stipulate away the rights of the intervenor: “parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting inter-venors; if properly raised, these claims remain and may be litigated by the intervenes. ... And, of course, a court may not enter a consent decree that imposes obligations on the party that did not consent to the decree.” Firefighters Local 93 v. City of Cleveland, — U.S. -, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986) (citations omitted). See also, United States v. Borden, 347 U.S. 514, 74 S.Ct. 703, 98 L.Ed. 903 (1954) (prior consent decree entered between the parties to a private antitrust suit does not preclude the government from obtaining injunctive relief against the parties in a subsequent action). Raylite Electric Corp. v. Noma Electric Corp., 170 F.2d 914, 915 (2d Cir.1948). \"... a stipulation signed after an intervener has entered cannot affect his [the intervener] rights.... The right to intervene ... presupposes that the inter-venor has a right to protect which is not subject to the disposition of the parties already in the case.” For example, in Wheeler v. American Home Products, 563 F.2d 1233, 1237-38 (5th Cir.1977), the Fifth Circuit held that the district court erred in approving a settlement between the original plaintiffs and defendants and dismissed the entire action with prejudice without considering the rights of the intervenor. See also Harris v. Amoco Production Co., 768 F.2d 669 (5th Cir.1985) (The EEOC, which represents the public interest, should not be dismissed from a case in which it intervened after the private litigants settled their claims). The precise issue herein is whether the Government really has a separate and distinct right or interest from that of the private plaintiffs in enforcing the provisions of ERISA. As previously established," }, { "docid": "17874177", "title": "", "text": "(7th Cir.1988) (suggesting that standing may be required in part because an intervenor acquires rights which may undermine the original parties’ interests). Moreover, as the Court said in Firefighters: “It has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.” Id. at 528-30, 106 S.Ct. at 3079 (emphasis added). For the foregoing reasons, we reverse the district court’s denial of Brown’s and Culber-son’s motion to intervene and we remand the case with instructions to forthwith grant Brown and Culberson intervention. REVERSED and REMANDED with instructions. . \"Rule 24. Intervention. (a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the application claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the Untied States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a common question of law or fact....” . Section 802(b)(i) of Pub.L. 104-134, 110 Stat. 1321-70, provides: \"Section 3626 of title 18, United States Code, as amended by this section, shall apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title.” . The PLRA as amended in November 1997 states," } ]

[ { "docid": "22560547", "title": "", "text": "VII”); Meritor Savings Bank, FSB, 477 U. S., at 72 (“[C]ommon-law principles may not be transferable in all their particulars to Title VII”). Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements’ strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith efforts to comply with Title VII.” 139 F. 3d, at 974 (Tatel, J., dissenting). As the dissent recognized, “[gjiving punitive damages protection to employers who make good-faith efforts to prevent discrimination in the workplace accomplishes” Title VIFs objective of “motivating] employers to detect and deter Title VII violations.” Ibid. We have concluded that an employer’s conduct need not be independently “egregious” to satisfy § 1981a’s requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff’s burden of proof. We leave for remand the question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in the instant case, and the en banc majority had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite “egregious” misconduct. 189 F. 3d, at 968. Although trial testimony established that Allen made the ultimate decision to promote Spangler while serving as petitioner’s interim executive director, respondent’s highest position, Tr. 159 (Oct. 19, 1995), it remains to be seen whether petitioner can make a sufficient showing that Allen acted with malice or reckless indifference to petitioner’s Title VII rights. Even if it could be established that Wheat effectively selected O’Donnell’s replacement, moreover, several questions would remain, e. g., whether Wheat was serving in a “managerial capacity” and whether he behaved with malice or reckless indifference to petitioner’s rights. It may also be" } ]

[ { "docid": "506611", "title": "", "text": "in which Hemphill filled the position (which was itself in violation of MCCG’s own policies) gives rise to an inference of intentional discrimination. Carter v. Three Springs, 132 F.3d 635, 644 (11th Cir.1998) (deviation from established hiring procedures for benefit of non-minority is evidence of discriminatory intent). Finally, because of the informal manner in which Hemphill filled this position, she was under a “duty to consider all those who might reasonably be interested,” and therefore, the fact that Plaintiff never formally applied for the job of nursing supervisor is not relevant to whether she established a prima facie case of discrimination. Instead, all she need do is establish “that [s]he was qualified for the position.” Jones v. Firestone Tire and Rubber Company, Inc., 977 F.2d 527, 533 (11th Cir.1992). Defendant does not challenge Plaintiffs objective qualifications for the job of nursing supervisor. In these circumstances, Plaintiffs prima facie case is sufficient to warrant a jury determination on the merits of her claim. E. Punitive Damages The Supreme Court held in Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), that punitive damages under § 1981a(b)(l) requires a finding by the jury that the defendant acted either with “malice or with reckless indifference to [the plaintiffs] federally protected rights.” Id. at 534, 119 S.Ct. at 2124. Mere egregiousness of the .defendant’s conduct is not sufficient without a showing that the defendant knew, or was recklessly indifferent to the federally 'protected rights of his victim. The Supreme Court also held that “an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith” efforts to comply with Title VII.” Id. at 545, 119 S.Ct. at 2129. Defendant argues that it is entitled to summary judgment on Plaintiffs claim for punitive damages, based on its good-faith attempts to comply with Title VII. Although Hemphill and Ramage qualify as managerial agents for purposes of establishing the independent liability of the employer, neither of them was sufficiently important in the corporate hierarchy of MCCG to justify a" }, { "docid": "23618539", "title": "", "text": "obviates the need to reach the punitive damages claim. Nonetheless, we discuss the claim because punitive damages were the only damages awarded by the jury, and Tepperwien’s lack of entitlement to punitive damages is clear. Punitive damages are available under Title VII where an employer discriminates or retaliates against an employee with “malice” or “reckless indifference” to the employee’s federally protected rights. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (quoting 42 U.S.C. § 1981a(b)(l)); see Farias v. Instructional Sys., Inc., 259 F.3d 91, 101-02 (2d Cir. 2001). A plaintiff can satisfy this burden by presenting evidence that the employer discriminated (or retaliated) against him with “conscious knowledge it was violating the law,” or that it engaged in “ ‘egregious’ or ‘outrageous’ conduct from which an inference of malice or reckless indifference could be drawn.” Farias, 259 F.3d at 102. Even where a plaintiff establishes malice or reckless indifference, a corporate defendant may still avail itself of an affirmative defense. An employer can avoid liability for punitive damages by showing that it “[1] had an antidiscrimination policy and [2] made a good faith effort to enforce it.” Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir.2001). In Kolstad, the Supreme Court made clear that, “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” 527 U.S. at 545, 119 S.Ct. 2118 (quoting Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 974 (D.C.Cir.1998) (Tatel, J., dissenting)). The jury’s award of $500,000 in punitive damages on Tepperwien’s retaliation claim was wholly without basis. Tepperwien presented little if any evidence of malice or reckless indifference or egregious or outrageous behavior on the part of Entergy. He relies principally on Barry’s conduct, including Barry’s actions and statements discussed above. But for the same reasons that we conclude that this conduct was not materially adverse, we conclude, as a matter of law, that this conduct was not a sufficient" }, { "docid": "2333587", "title": "", "text": "jury’s verdict, the undersigned concludes the evidence is sufficient to support the jury’s findings on the retaliation claim, and to justify some award of punitive damages. There was enough evidence for the jury to conclude, as it did, that Tricorn acted with malice or reckless indifference to Richardson’s federally protected rights, in that it was at least aware of a risk that its retaliatory actions violated federal law. Based on the testimony of Tricorn’s management representatives, decisionmakers at the company knew that it was illegal to terminate an employee that complained about sexual harassment. This supports a conclusion that Tricorn’s conduct was “reprehensible” to some degree, involved retaliation and, at a minimum, constituted reckless disregard of Richardson’s federally protected rights. Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 41-42 (1st Cir.2003) (when an employer retaliates against an employee because the employee engages in conduct that is protected by well-established federal civil rights statutes, a jury could, but need not, fairly infer that the employer harbored malice or reckless indifference towards those civil rights, warranting an award of punitive damages); Kim v. Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir.1997) (evidence that employer knew what constituted'unlawful employment practices, systematically retaliated against employee for filing employment discrimination charge, and that retaliation was carried out by supervisors or management, was sufficient to support punitive damages under Title VII). The jury, by finding retaliatory discharge, necessarily found that Tricorn’s legitimate, non-discriminatory reasons for Richardson’s termination were pretextuál, and the Court does not find any reason to criticize or disturb that finding. There was also sufficient evidence to support the jury’s conclusion that Tricorn did not act in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit sexual harassment and retaliation. Admittedly, Tricorn had in place a sexual harassment policy, it promptly investigated Richardson’s complaint, offered Richardson positions in other divisions, took remedial action that stopped the alleged hárassment, and it instituted company-wide harassment training, as well as individual training for Trainer, after receiving Richardson’s complaint. Tricorn’s efforts were not sufficient, however, to prevent the" }, { "docid": "23471118", "title": "", "text": "of Mr. Taylor’s responses amply demonstrates that Equifax’s responses to Ms. Deters’ complaints were not merely inadequate, but rather reckless and malicious. See supra Part III. In sum, Mr. Taylor — the manager specifically charged by Equifax with the enforcement and implementation of the sexual harassment policy at the Lenexa office — responded to Ms. Deters numerous complaints with utter disregard of her rights, actually condoning the harassment for the sake of protecting Equifax’s revenue producing employees. Finally, Equifax argues that even assuming that Mr. Taylor was a management-level employee for purposes of imputing punitive liability, his misconduct is not attributable to Equifax, because it goes against the company’s good-faith policies against sexual harassment. It is certainly true, as the Supreme Court recently stated, that in the context of punitive damages, an employer may not be liable for the discriminatory employment decisions of management-level employees where these acts are contrary to good-faith efforts on the part of the employer to comply with Title VII. See Kolstad, 119 S.Ct. at 2129. This principle is meant to advance the purposes of Title VII by encouraging the remediation and prevention that lie at the heart of the statute’s goals. Id. It would defeat these purposes to hold an employer strictly liable for the acts of rogue managers when it has made every effort to comply with Title VII’s requirements. However, Kolstad was a case involving vicarious liability, unlike this case which is premised on a theory of direct liability. Thus, the good-faith defense does not apply. It is negated by a showing of direct malice or reckless indifference to federally protected rights of Ms. Deters, by Mr. Taylor who was designated by the company as a final decision-making authority responsible for implementing the company anti-discrimination policy in the Lenexa office. V. Excessiveness of Punitive Damages Award Equifax next argues that even if Ms. Deters is entitled to punitive damages, the award. is excessive and contrary to constitutional, common law, and statutory criteria. Equifax thus requests a remittitur or a new trial. Equifax claims that the size of the award is excessive because, even" }, { "docid": "506612", "title": "", "text": "527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), that punitive damages under § 1981a(b)(l) requires a finding by the jury that the defendant acted either with “malice or with reckless indifference to [the plaintiffs] federally protected rights.” Id. at 534, 119 S.Ct. at 2124. Mere egregiousness of the .defendant’s conduct is not sufficient without a showing that the defendant knew, or was recklessly indifferent to the federally 'protected rights of his victim. The Supreme Court also held that “an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith” efforts to comply with Title VII.” Id. at 545, 119 S.Ct. at 2129. Defendant argues that it is entitled to summary judgment on Plaintiffs claim for punitive damages, based on its good-faith attempts to comply with Title VII. Although Hemphill and Ramage qualify as managerial agents for purposes of establishing the independent liability of the employer, neither of them was sufficiently important in the corporate hierarchy of MCCG to justify a finding that MCCG acted with “malice or with reckless indifference to [the plaintiffs] federally protected rights.” What may be probative of MCCG’s intent to violate Plaintiffs federally protected rights, however, is the conduct of Ronald Conners, the Chief Executive Officer of CareSouth. Although he pressured Hemphill and Allen to tender their resignations following the September 23, 1996, employees’ complaint, Plaintiff has produced evidence that Connors never took the alleged violations of Title VII seriously. (Rocker Dep. at 77-79). Similarly, Hemphill testified that when she met with Connors after the September grievance, Connors never asked her about the allegations of racial discrimination raised in the employees’ grievance. (Hemphill Dep. at 166-67). Thus, a reasonable jury could conclude that CareSouth was “recklessly indifferent” to the federally protected rights of Nealey and other African-American employees of MCCG. A jury could also reasonably conclude that MCCG had not attempted in “good-faith” to comply with Title VII from the fact that it failed to require its managerial personnel such as Hemphill to undergo training in Title VII compliance. {Id. at" }, { "docid": "15011703", "title": "", "text": "(1) Cush-Crawford’s Title VII claims were time-barred; (2) the evidence was insufficient to support the jury’s verdict on the question of hostile work environment; (3) the trial judge improperly failed to instruct the jury on Ad-chem’s affirmative defense to vicarious liability for sex harassment; and (4) punitive damages are unavailable absent an award of actual or nominal damages. Cush-Crawford, in turn, argues that she is entitled to a new trial on the issue of actual damages for pain and suffering. We find no reversible error, and write only to clarify the availability of punitive damages under Title VII absent an award of actual or nominal damages. Title VII provides that a plaintiff may recover punitive damages where the plaintiff demonstrates that the defendant “engaged in a discriminatory practice ... with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). In order to establish malice or reckless indifference, a plaintiff need not show that the defendant committed egregious or outrageous acts. Rather, a plaintiff need only demonstrate that the defendant had the “requisite state of mind” of malice or reckless indifference. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 538, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); see also Luciano v. Olsten Corp., 110 F.3d 210, 219-20 (2d Cir.1997). Specifically, a plaintiff seeking to establish this must demonstrate that the “employer ... at least discriminate^] in the face of a perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 536, 119 S.Ct. 2118. The amount of punitive damages is subject to a schedule that places caps on the “sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section.” 42 U.S.C. § 1981a(b)(3). In the case of an employer with more than 100 and fewer than 201 employees, the maximum award of future pecuniary, nonpecuniary, and punitive damages is $100,000. • See 42 U.S.C. § lOSlaCbXSXB). This Circuit has not" }, { "docid": "5957517", "title": "", "text": "and that such wrongdoing, if discovered, would have resulted in immediate termination. Greene herself acknowledged at her deposition that she falsified her employment application, and plaintiff has not put forth any evidence to rebut Coach's substantial showing that Coach would have terminated her based on this misrepresentation. On this record, we find that there are no material facts in dispute with respect to the question of the impact of the after-acquired evidence. Therefore, defendant's motion to limit plaintiffs remedies is granted. Accordingly, plaintiffs claims for reinstatement and front-pay are dismissed and plaintiffs claim for back-pay is limited to the period between her termination and Coach's discovery of her misrepresentation. D. Punitive Damages Punitive damages may be recovered under Title VII where the plaintiff establishes that the employer \"engaged in a discriminatory practice with malice or with reckless indifference to the federally protected rights of an aggrieved individual.\" 42 U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Ass'n, 527 U.S. 526, 529-30, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), the Supreme Court articulated the standard for imposing liability for punitive damages on an employer for the malicious or recklessly indifferent discrimination of its agents. See Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 384-85 (2d Cir.2001) (describing the holding of Koistad). Employer liability may be imposed where an employee serving in a managerial capacity commits the wrong within the scope of his employment, unless the discriminatory actions were in contravention of the employer's good faith efforts to comply with Title VII. Kolstad, 527 U.S. at 545, 119 S.Ct. 2118; Zimmermann, 251 F.3d at 385. This good faith defense requires the employer to establish both that it had an antidiscrimination policy in place and that it made a good faith effort to enforce it. Zimmermann, 251 F.3d at 385. Defendant Coach moves to dismiss plaintiffs claims for punitive damages on the grounds that Coach's practices in establishing and enforcing antidiscrimination policies shield it from liability for punitive damages. In support of this position, Coach offers the affidavit of its Human Resources Director, attesting to its good faith efforts to comply with" }, { "docid": "8416162", "title": "", "text": ". While the Ellerth/Faragher affirmative defense offers meaningful protection to well-intentioned defendants who take preventative and corrective measures to address harassment in the workplace — it is not the only safety valve for defendants facing Title VII claims. Regardless of the existence of an internal complaint, Title VII itself requires an employee to file an EEOC claim in a timely and specific manner. For example, a plaintiff must file a complaint with the EEOC within 180 days of the alleged discriminatory act (or within 300 days if the plaintiff has initially instituted proceedings with a state or local agency with authority to grant relief). 42 U.S.C. § 2000e-5(e)(l). In addition, a Title VII plaintiff must exhaust all administrative remedies. Tolbert v. United States, 916 F.2d 245, 247 (5th Cir.1990). \"Ordinarily, an employee may not base a Title VII claim on an action that was not previously asserted in a formal charge of discrimination to the EEOC, or that could not 'reasonably be expected to grow out of the charge of discrimination.’ \" Filer v. Donley, 690 F.3d 643, 647 (5th Cir.2012) (quoting Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir.2006)). . For example, several courts have held that a plaintiff is entitled to compensatory, but not punitive, damages, even where supervisors knew of discriminatory conduct and failed to afford employees a clear path to report the discrimination. See, e.g., Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1035 (8th Cir.2008) (finding punitive damages inappropriate where the evidence showed no individual or corporate malice or reckless indifference to the company’s Title VII obligations); Splunge v. Shoney’s, Inc., 97 F.3d 488, 490-91 (11th Cir.1996) (denying punitive damages where higher management had constructive knowledge of discriminatory conduct); Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir.1986) (finding no evidence in the record to suggest reckless disregard for plaintiff’s rights where plaintiff was treated courteously, but discriminated against, in his endeavor to obtain a directorship position); Soderbeck v. Burnett Cnty., 752 F.2d 285, 290 (7th Cir.1985) (finding punitive damages to be improper on the basis of discharge to make a" }, { "docid": "6862368", "title": "", "text": "plaintiff must demonstrate that the defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. § 1981a(b)(l) (emphasis added); see Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). The terms “malice” and “reckless” inquire into whether the defendant employer has knowledge that he or she may be acting in violation of federal law, not an awareness that he or she is engaging in discrimination. See Kolstad, 527 U.S. at 535, 119 S.Ct. 2118. FedEx asserts that Johnson cannot recover punitive damages because she fails to prove that the management at the York station engaged in discrimination with malice or reckless indifference. (Doc. 72 at 15-16). In response, Johnson presents evidence that, through its internal investigation, FedEx was aware that Johnson and Pooler performed the same service agent tasks, but Pooler earned higher courier pay, in violation of FedEx’s internal rules. (Doc. 91 at 19-20). The court finds that this inquiry hinges upon a subjective analysis of “the actor’s state of mind.” See Kolstad 527 U.S. at 535, 119 S.Ct. 2118. Determining an employer’s intent or knowledge for its employment actions is a task best relegated to the factfinder. See Hanes v. Columbia Gas of Pa. Nisource Co., No. 1:06-CV-0328, 2008 WL 3853342, at *9 (M.D.Pa. Aug. 15, 2008); see also Harry v. City of Phila., No. 03-661, 2004 WL 1387319, at *16 n. 24 (E.D.Pa. June 18, 2004) (“Since plaintiffs claim for racial discrimination under Title VII will survive this motion for summary judgment, so too will his claim for punitive damages based on such violation.”). Once a plaintiff makes a showing of “malice” or “reckless indifference” to his federal rights, the plaintiff must also “impute liability for punitive damages” from an individual to the defendant employer. Id. at 539, 119 S.Ct. 2118. The Supreme Court precludes claims of vicarious liability for punitive damages “where [discriminatory employment] decisions are contrary to the employer’s good-faith efforts to comply with Title VII.” Id. at 545, 119 S.Ct. 2118 (internal" }, { "docid": "12535700", "title": "", "text": "from her computer at work if such evidence existed. Again, the Court notes that Coville's cross-complaint against Fleet alleged that \"Fleet failed to preserve inner and interdepartmental communications between the Defendant Coville and the Plaintiff that would have revealed the consensual nature of the relationship.” Cross-Complaint, at ¶ 3(b). This allegation underscores the absence of critical proof from Fleet's motion for summary judgment. . Additionally, Fleet argues that it even if it is liable for sexual harassment, it cannot be held liable for punitive damages because it \"acted reasonably and in good faith in attempting to prevent and rectify the sexual harassment!.]” Fleet Memo, at 23, n. 14. In support of this contention, Fleet cites Kolstad v. American Dental Ass'n, 527 U.S. 526, 545, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), which held that \"in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where [those] decisions are contrary to the employer's ‘good-faith efforts to comply with Title VIL' ” In determining whether punitive damages should be awarded in a Title VII claim, the trier of fact must reasonably find that the employer \"acted with malice or reckless indifference to [an employee’s] Title VII rights.\" Id. Fleet argues that it should not be liable for punitive damages because it was \"not apprised of the alleged sexual harassment until almost two years after its alleged inception in March 1995.” Fleet Memo, at 23, n. 14. However, if the jury concludes that Fleet has not met the reasonableness prong of the Far-agher/Ellerth affirmative defense because it failed to exercise reasonable care in preventing and promptly correcting Title VII violations, the jury could also find that Fleet acted with \"reckless indifference” to plaintiff's Title VII rights. Therefore, the Court cannot rule as a matter of law that plaintiff is precluded from seeking punitive damages. . The plaintiff in O’Dell had claimed that she was constructively discharged when she quit because she believed her employer would not take her complaints of harassment seriously based on the employer’s past failure to keep her complaint confidential" }, { "docid": "13401086", "title": "", "text": "v. Am. Dental Ass’n. We have cautioned that “not every sufficient proof of pretext and discrimination is sufficient proof of malice or reckless indifference.” Hardin v. Caterpillar, Inc. Nevertheless, a plaintiff need not show the defendant’s conduct was especially egregious, as “[t]he availability of punitive damages turns on the defendant’s state of mind, not the nature of the defendant’s egregious conduct.” EEOC v. E.I. Du Pont de Nemours & Co. This is a subjective inquiry and focuses on whether the employer “at least discriminate[d] in the face of a perceived risk that its actions will violate federal law.” For example, an employer that is unaware of the relevant federal prohibition or that acts with a justifiable belief that its discrimination is lawful will not be liable for punitive damages. Moreover, under a “good faith” exception, an employer will not be liable for punitive damages based on the discriminatory actions of its managerial agents if those actions are contrary to the employer’s good faith efforts to comply with Title VII. See Hatley v. Hilton Hotels Corp. Neither party in this case addresses the punitive damages issue in terms of the subjective inquiry framework, i.e., whether the evidence supports a conclusion that Xerox’s decision makers were both aware of Title VH’s prohibitions against retaliation and were aware that the decision to terminate Smith risked violating federal law. . Xerox simply asserts that, for the same reasons it believes the evidence was insufficient to show that the termination occurred because of Smith’s EEOC complaint, there was insufficient evidence that it acted maliciously or recklessly. In response, Smith relies on much of the same evidence discussed above allowing an inference that retaliation was a motivating factor in her termination as support for the jury’s finding of malice or reckless indifference. In this regard, she points to Xerox’s failure to follow its written polices and procedures, presumably meaning Xerox’s PIP policies and the attendant requirements for documentation. She also asserts that Joe Villa, as a human resources manager, did not participate in the investigation of her EEOC complaint despite company policy to the contrary, and" }, { "docid": "8416132", "title": "", "text": "to handle himself in a more professional manner in regards to safety.” Considering these facts and drawing all reasonable inferences in the light most favorable to the verdict, we cannot say that no reasonable juror could have found that Boh Brothers failed to take reasonable measures to prevent and correct Woods’s harassment. Because the two prongs of the El-lerth/Faragher affirmative defense are conjunctive and there is sufficient evidence to support the jury’s determination on prong one, we need not consider prong two: whether Woods satisfied his duty to take full advantage of his employer’s preventative and corrective measures. We note that the evidence was thin on this prong: Woods’s initial informal complaints to Carpenter made no reference to sexual harassment, and Woods did not raise the issue with Duckworth until months later, after he thought he had been fired for an unrelated incident. Had Boh Brothers adopted suitable institutional policies and educational programs regarding sexual harassment, it may have avoided liability. Because a reasonable juror could have concluded that it did not, we uphold the jury’s rejection of Boh Brothers’s Ellerth/Faragher affirmative defense. B. Having decided that the evidence supports the jury’s liability finding, we turn next to whether it supports the jury’s punitive damages award. A Title VII plaintiff may recover punitive damages upon proof that the defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). This is a higher standard than the showing necessary for compensatory damages, satisfied in “only a subset of cases involving intentional discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Thus, “not every sufficient proof of pretext and discrimination is sufficient proof of malice or reckless indifference.” Hardin v. Caterpillar, Inc., 227 F.3d 268, 270 (5th Cir.2000). Moreover, even if particular agents acted with malice or reckless indifference, an employer may avoid vicarious punitive damages liability if it can show that it made good-faith efforts to comply with Title VII. Kolstad, 527 U.S. at 545-46, 119 S.Ct. 2118. Given these stringent standards, a" }, { "docid": "15011702", "title": "", "text": "contended that when Cush-Crawford finally brought her complaint about Mars to its attention in November 1994, company officials took prompt remedial action. After a six-day jury trial before Judge Spatt, the jury returned a verdict in favor of Adchem on the quid pro quo and retaliation claims, and in favor of Cush-Crawford on the hostile environment claim. The jury awarded Cush-Crawford zero dollars in actual damages and $100,000 in punitive damages. Plaintiff moved for a new trial on the issue of compensatory damages and for an award of attorney’s fees; defendant moved to set aside the jury’s verdict on the hostile environment claim and to set aside the award of punitive damages. The trial judge denied defendant’s motion to set aside the verdict and the punitive damages award, and denied plaintiffs motion for a new trial on the issue of actual damages. The trial judge then awarded plaintiff $54,052 in attorney’s fees and $2,026 in costs. Adchem appealed and Cush-Craw-ford cross-appealed. DISCUSSION On appeal, Adchem and Cush-Crawford raise a number of different arguments. Adchem contends: (1) Cush-Crawford’s Title VII claims were time-barred; (2) the evidence was insufficient to support the jury’s verdict on the question of hostile work environment; (3) the trial judge improperly failed to instruct the jury on Ad-chem’s affirmative defense to vicarious liability for sex harassment; and (4) punitive damages are unavailable absent an award of actual or nominal damages. Cush-Crawford, in turn, argues that she is entitled to a new trial on the issue of actual damages for pain and suffering. We find no reversible error, and write only to clarify the availability of punitive damages under Title VII absent an award of actual or nominal damages. Title VII provides that a plaintiff may recover punitive damages where the plaintiff demonstrates that the defendant “engaged in a discriminatory practice ... with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). In order to establish malice or reckless indifference, a plaintiff need not show that the defendant committed egregious or outrageous acts. Rather, a plaintiff need only demonstrate" }, { "docid": "23573113", "title": "", "text": "... federally protected rights’ within the meaning of § 1981a(b)(1).” Medlock, 164 F.3d at 551. However, we need not make such a determination in order to find that Ms. Baty carried her burden in this case. We have held that Ms. Baty produced sufficient evidence that she was the victim of a hostile work environment and of retaliation, in violation of Title VII. Even assuming that Ms. Baty must show something more than merely intentional discrimination under Title VII, see Kolstad v. American Dental Assoc., 139 F.3d 958, 969 (D.C.Cir.) (en banc), cert. granted, - U.S. -, 119 S.Ct. 401, 142 L.Ed.2d 326 (1998), cert. denied, - U.S. -, 119 S.Ct. 408, 142 L.Ed.2d 331 (1998), we agree with the district court that there was sufficient evidence of Willamette’s “malice or reckless indifference” to warrant a punitive damages award: Plaintiff presented evidence from which a reasonable jury could have inferred that management did not really respond to plaintiffs complaints, despite knowledge of serious problems with harassment; that defendant conducted a sham investigation to appease plaintiff and other victims of harassment at the plant; and that management employees actually condoned the harassment. Accordingly, a reasonable jury could have found that defendant acted with malice or reckless indifference with respect to the sexual harassment of plaintiff. The court also concludes that the evidence was sufficient to support a punitive damage award on plaintiffs claim of retaliation. The jury could reasonably have inferred malice or reckless indifference from the evidence of resentment of plaintiff by management after the investigation and what could be viewed as patently false reasons given to plaintiff at the time of her termination. Baty, 985 F.Supp. at 996. The evidence therefore supports the jury’s award of punitive damages. C. Excessive Total Willamette argues that, although the district court reduced.the damages awarded to $300,000, in accordance with the cap of § 1981a, the award of $300,000 for both compensatory and punitive damages is still excessive. We disagree. Both sides refer us to “comparable” cases, Willamette arguing that they demonstrate the award is excessive, and Ms. Baty arguing that they demonstrate" }, { "docid": "9975496", "title": "", "text": "for emotional distress,” we cannot say that a $250,000 award was so excessive that permitting it to stand constituted plain error. Id. 2. Punitive Damages Although the issue was not raised below, Ramallo urges us to reverse the punitive, damages award for a lack of evidence. We review for plain error. See Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir.2002). Title VII authorizes punitive damages when a plaintiff demonstrates that the defendant engaged in intentional discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981(a)(b)(1). The Supreme Court has provided a three-part framework for determining whether a punitive damage award is proper under the statutory standard. See Kolstad v. Am. Dental Assoc., 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). To qualify for punitive damages, a plaintiff must first demonstrate that the employer acted with malicious or reckless indifference to the plaintiffs federally protected rights. See id. at 535-36, 119 S.Ct. 2118. Once a plaintiff has adduced such proof, she then must establish a basis for imputing liability to the employer. See id. at 539, 119 S.Ct. 2118. But even if the plaintiff makes these showings, the employer still may avoid punitive liability by showing that it engaged in good faith efforts to implement an anti-discrimination policy. See id. at 545, 119 S.Ct. 2118. An employer’s good faith effort to comply with Title VII demonstrates that the employer itself did not act with the culpable mental state, thus making it inappropriate to punish the employer for the manager’s conduct. See id. at 544-45, 119 S.Ct. 2118. Demonstrating good faith compliance is an affirmative defense, and the burden of proof therefore rests with the employer. See Romano v. U-Haul Int’l, 233 F.3d 655, 670 (1st Cir.2000). Applying the Kolstad framework and the plain error standard, we conclude that there was sufficient evidence to-permit a punitive damages award. Restrepo testified that he was aware of signs posted throughout the Ramallo facility that “talked about the discrimination and the laws and the rights that the employees have.” From this" }, { "docid": "12758813", "title": "", "text": "preventing and correcting sexually harassing conduct, Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir.1999), the fact that so many incidents occurred following not only the reporting of the initial incidents, but also after the filing of the several CCHRO complaints, was sufficient to allow the jury to conclude that Defendant’s attempts at remedial action were ineffective. Although there was evidence that Defendant responded to Plaintiffs complaints, the critical issue was whether its response was adequate. Plaintiff claims that the pattern of ineffectual action continued throughout the course of her employment. The promptness and adequacy of an employer’s response is generally a question of fact for the jury. See Howley, 217 F.3d 141, 156; Richardson, 180 F.3d at 441. There was sufficient evidence from which a jury could have reasonably concluded that Defendant’s response was not adequate. We conclude, therefore, that under the stringent standards for granting judgment as a matter of law, the Defendant’s motion as it pertains to the compensatory damage award, must be denied. The alternative request for a new trial is denied for the same considerations. PUNITIVE DAMAGES The Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(l), provide that a complainant may recover punitive damages if she demonstrates that “the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Before a jury may award punitive damages, the Defendant must have engaged in intentional and malicious conduct that demonstrates an indifference to the federally protected rights of the Plaintiff, in the face of a “perceived risk that its actions will violate federal law.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S.Ct. 2118, 2125, 144 L.Ed.2d 494 (1999). Moreover, an employer may not be liable for punitive damages where it makes good faith efforts to enforce an anti-harassment policy. Id. at 2128. In Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8th Cir.1999), the court affirmed the trial court’s refusal to instruct the jury on punitive damages. There, the plaintiff alleged a campaign of sexual harassment by a" }, { "docid": "12758814", "title": "", "text": "trial is denied for the same considerations. PUNITIVE DAMAGES The Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(l), provide that a complainant may recover punitive damages if she demonstrates that “the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Before a jury may award punitive damages, the Defendant must have engaged in intentional and malicious conduct that demonstrates an indifference to the federally protected rights of the Plaintiff, in the face of a “perceived risk that its actions will violate federal law.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S.Ct. 2118, 2125, 144 L.Ed.2d 494 (1999). Moreover, an employer may not be liable for punitive damages where it makes good faith efforts to enforce an anti-harassment policy. Id. at 2128. In Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8th Cir.1999), the court affirmed the trial court’s refusal to instruct the jury on punitive damages. There, the plaintiff alleged a campaign of sexual harassment by a co-worker. She repeatedly complained to her assistant manager, who addressed each complaint and spoke to the alleged harasser, ultimately threatening him with termination. The circuit court opined that [t]here was no evidence suggesting evil motive or an intentional violation of federal law by the Meiners management. [The assistant manager] credited Dhyne’s complaints. Though he failed to remedy the situation, he warned [the co-worker] to behave and eventually urged that [the co-worker] be fired. Dan Meiners responded decisively when Dhyne complained to him in June 1996. The Meiners management may have excessively delayed, but it was not guilty of acting “with malice or with reckless indifference.” Id. at 988. Defendant had written procedures (Corporate Policies and Procedures, Standard Procedures, and Policy Statements) in its management manuals establishing Equal Employment Opportunity (“EEO”) programs and employee complaint procedures. Defendant also had a staffed EEO office at the Windsor Site. New hires at Windsor went through an orientation program during which they were provided ■with an Employee Handbook and the Ethics Handbook, which described the EEO program and policy" }, { "docid": "21318120", "title": "", "text": "under Title VII and § 1981 here are virtually the same. While the verdict forms did not disclose which statute formed the basis of the jury’s finding of liability, the district court instructed the jury regarding punitive damages pursuant to the language of Title VII. The instruction allowed the jury to “award punitive damages, if that plaintiff has proved that KCS acted with malice or willfulness or with callous and reckless indifference to the rights of the plaintiffs to be free from discrimination based upon race.” This closely tracks § 1981a’s requirement that the complaining party “demonstrate[ ] that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” The court also properly instructed the jury regarding “agency principles” required for a finding of vicarious punitive damages under Title VII, stating, “KSC is only liable for punitive damages in this case if the acts of harassment were committed by a supervisory employee with immediate, or successively higher authority over the plaintiff, and that conduct was contrary to KCS’s good faith effort to comply with the law.” The grounding of punitive damages between the high threshold of culpability for an award and a cap of the amount in any event upholds Congress’s purpose in enacting the 1991 amendments to Title VII— to provide “additional remedies,” in the form of damages, to prevent discrimination in the workplace while mitigating the risk of disproportionate awards. Injury that results from discrimination under Title VII is often difficult to quantify in physical terms; preventing juries from awarding punitive damages when an employer engaged in reprehensible discrimination without inflicting easily quantifiable physical and monetary harm would quell the deterrence that Congress intended in the most egregious discrimination cases under Title VII. Indeed, there is some unseemliness for a defendant who engages in malicious or reckless violations of legal duty to escape either the punitive or deterrent goal of punitive damages merely because either good fortune or a plaintiffs unusual strength or resilience protected the plaintiff from suffering harm. KCSR argues that" }, { "docid": "22204416", "title": "", "text": "Supreme Court clarified the requisite mental state of employers, the analysis primarily at issue in this case. Under Title VII, the jury may award punitive damages if the moving party demonstrates that “the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). Interpreting this section, the Supreme Court concluded that Congress intended to impose a heightened standard of liability for the award of punitive damages, but rejected the argument that the heightened standard requires that an employer’s behavior be “egregious.” Kolstad, 527 U.S. at 534-35, 119 S.Ct. 2118. Instead, the Court concluded that Congress intended for punitive damages to apply in intentional discrimination cases where the plaintiff can show that the employer knowingly or recklessly acted in violation of federal law. Id. at 535, 119 S.Ct. 2118. The Court found that the questions of malice and reckless indifference are subjective questions concerning the employer’s motive or intent, rather than an objective inquiry into whether the employer’s behavior is “egregious.” Id. at 535-38,119 S.Ct. 2118. The defendant is appropriately subject to punitive damages if it acts “in the face of a perceived risk that its actions will violate federal law.” Id. at 536, 119 S.Ct. 2118. The Supreme Court explained that although egregious conduct could be evidence of an intentional violation of the law, it was not a necessary element. Id. at 535,119 S.Ct. 2118. The Supreme Court also held that the plaintiff must “impute liability for punitive damages to respondent.” Id. at 539, 119 S.Ct. 2118. Under this step, the plaintiff must show that the intentional discrimination by an employee is attributable to the employer by using traditional agency principles, e.g., that a managerial employee acted within the scope of his or her employment. Id. at 540-41, 119 S.Ct. 2118. Finally, the Supreme Court clarified that the defendant employer may raise as an affirmative defense its good faith efforts to comply with Title VII, if such efforts were contrary to the actions of its managerial agents. Id. at 545-46, 119 S.Ct." }, { "docid": "23573112", "title": "", "text": "frequent crying” constituted “substantial evidence” which supported compensatory damage award, even in absence of testimony of treating physician or psychologist). Willamette argues that the court failed to distinguish between pre-June 16, 1994 and post-June 16, 1994 damages. However, Ms. Baty presented evidence that her injuries continued beyond June 16, 1994, the commencement of the period for which damages were compensable. As the district court observed, “the jury could reasonably have concluded that [she] suffered compensable injury after that date.” Baty, 985 F.Supp. at 996. B. Punitive Damages Willamette also argues that evidence was insufficient to support an award of punitive damages. A Title VII plaintiff may receive punitive damages if he or she demonstrates that the defendant “ ‘engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [his or her] federally protected rights.’ ” Medlock, 164 F.3d at 551 (quoting 42 U.S.C. § 1981a(b)(1)). We have acknowledged that we have “not had occasion to determine comprehensively what burden a plaintiff must carry to prove ‘malice or reckless indifference to ... federally protected rights’ within the meaning of § 1981a(b)(1).” Medlock, 164 F.3d at 551. However, we need not make such a determination in order to find that Ms. Baty carried her burden in this case. We have held that Ms. Baty produced sufficient evidence that she was the victim of a hostile work environment and of retaliation, in violation of Title VII. Even assuming that Ms. Baty must show something more than merely intentional discrimination under Title VII, see Kolstad v. American Dental Assoc., 139 F.3d 958, 969 (D.C.Cir.) (en banc), cert. granted, - U.S. -, 119 S.Ct. 401, 142 L.Ed.2d 326 (1998), cert. denied, - U.S. -, 119 S.Ct. 408, 142 L.Ed.2d 331 (1998), we agree with the district court that there was sufficient evidence of Willamette’s “malice or reckless indifference” to warrant a punitive damages award: Plaintiff presented evidence from which a reasonable jury could have inferred that management did not really respond to plaintiffs complaints, despite knowledge of serious problems with harassment; that defendant conducted a sham investigation to appease plaintiff" } ]

[ { "docid": "22321238", "title": "", "text": "failure to state a claim for relief, without prejudice to petitioner’s right to amend. It held that, without affirmative averments as to the cause of the absences from work, it must be assumed the absences were voluntary, and that the bargaining contracts did not obligate respondent to pay wages during voluntary absences. 107 F. Supp.692. The Court of Appeals for the Third Circuit, sitting en banc, three judges dissenting, vacated the district court’s order dismissing the complaint on the merits, and directed a dismissal for lack of jurisdiction. After stating that § 301 “is a grant of federal-question jurisdiction and thus creates a federal, substantive right” and reviewing various theories explaining the relationship between union, employer and employees under a collective bargaining agreement, the court adopted an “eclectic theory,” based primarily upon language in J. I. Case Co. v. Labor Board, 321 U. S. 332. The bargaining contract, said the Court, obligates the employer to include in the contracts of hire with each employee the terms and conditions which had been settled between the union and the employer, but the collective contract itself is not a contract of hire. Not until an employee enters into an individual contract of hire and performs services does the employer become bound to pay the particular employee the specified wages. It follows, said the Court, that if there was a breach in this case, it was a breach of the employment contracts with the individual employees who were not paid. Section 301, on the other hand, grants jurisdiction to federal courts only over cases involving breaches of the collective bargaining contract between the union and the employer. There fore, it was concluded, the district court was without jurisdiction of the suit. 210 F. 2d 623. The dissenting judges agreed that a failure to pay wages might well constitute a breach of the individual hiring contracts as a basis of common-law suits by the employees. But they deemed the breach, if any, also a breach of the collective bargaining contracts and as such cognizable in the federal court under §301. They concluded that Rule 17" } ]

[ { "docid": "8196141", "title": "", "text": "fact has jurisdiction and if causes of action may be maintained by an employer against individual employees on the basis of a violation by them individually of the provisions of a collective bargaining agreement between the employer and the union under the provision of § 301(a), then Count II is not vulnerable to a motion to dismiss. Section 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)) provides as follows: “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” Congress has directed the courts to formulate and apply Federal law to suits for violation of collective bargaining contracts. There is no constitutional difficulty and § 301 is not to be given a narrow reading; § 301 has been applied to compel arbitration of individual grievances pertaining to rates of pay, hours of work and wrongful discharge, to obtain specific enforcement of an arbitrator’s award ordering reinstatement and back pay to individual employees, to recover wage increases in a contest over the validity of the collective bargaining contract, and to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195, 199, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). In support of the last proposition, namely, that § 301(a) has been applied to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement, the Court in Smith, supra, cites Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462. In Atkinson, supra, the Supreme Court had before it a question somewhat comparable, but different than that presented here. In Atkinson, supra, Count II of the complaint charged 24 individual officers and agents of the union with breach of a" }, { "docid": "16672948", "title": "", "text": "NLRA. For these reasons, we find that Samples’ potential state law claims have been preempted by section 301(a) of the LMRA. Having determined that this suit is governed by section 301(a), we are next faced with the question of whether it should be characterized as (1) a “straightfoward” section 301 claim, which Samples can assert directly in his capacity as an individual employee harmed by his employer’s breach of the collective bargaining agreement, see Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); or (2) a “hybrid section 301/fair representation claim,” which he can only assert individually if he alleges additionally that his union breached its duty of fair representation in failing to prosecute his claim, see Hines v. Anchor Motor Freight, 424 U.S. 554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). Samples contends that he has a straightforward claim, while Ryder asserts that he erred in failing to allege inadequate union representation. The proper characterization of the claim must be grounded in an understanding of the rationale behind the distinction. The cases demonstrate that it is a product of courts’ continuing efforts to strike a proper balance between the need to protect individual employees’ interests in gaining redress for their grievances and the need to protect the collective interest in preserving the autonomy of the negotiated grievance and arbitration procedures. Generally, the courts have refrained from adjudicating individual employee suits against an employer when the employee could gain redress by relying on his union representatives and the collectively bargained grievance procedure. Any curtailment of individual remedies has been considered justified by the systemic benefits of collective bargaining. Indeed, after Congress passed the LMRA, the Supreme Court and numerous lower courts initially concluded that the right to bring a straightforward section 301 suit for breach of the collective bargaining agreement was limited to unions and employers. See Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955); see," }, { "docid": "7688651", "title": "", "text": "of unfair labor practices claims. However, appellees maintain that the district courts properly reached the merits of their section 8(e) defense because it arose in the context of a section 301 action. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, grants district courts jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . .” Appellees maintain that because the district court had jurisdiction over the trustees’ breach of contract claim under section 301, the court could properly decide the merits of their unfair labor practice defense to contract enforcement. The Supreme Court explored the interaction of section 301 with the primary jurisdiction doctrine in Smith v. Evening News Association (1962) 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, and Motor Coach Employees v. Lockridge (1971) 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473. In Smith v. Evening News Association the Court held that the Garmon principle did not preempt a court’s jurisdiction over a section 301 action for a breach of contract that also was an unfair labor practice. The Court concluded that “[t]he authority of the [National Labor Relations] Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.” (Smith v. Evening News Association, supra, 371 U.S. at 197, 83 S.Ct. at 269.) The Court noted that there was no problem in the case of conflict between the court’s enforcing a collective bargaining agreement and the NLRB’s remedying unfair labor practices. Indeed, the NLRB actually supported the court’s jurisdiction to remedy a contract breach that was also an unfair labor practice. (Smith v. Evening News Association, supra, 371 U.S. at 197-98 & n. 6, 83 S.Ct. 267.) In Motor Coach Employees v. Lockridge the Court indicated that although section 301 actions were exempted from the primary jurisdiction principle, that exemption applied only to the contract portion of such disputes." }, { "docid": "23136033", "title": "", "text": "the purposes of section 301, and the alleged breach of the “contract” affected collective bargaining and labor-management relations. The district court concluded there was no jurisdiction under the section because it does not confer jurisdiction in suits by members against their local or international union for breaches of the union constitution. While we agree with the result, the district court’s reasoning appears faulty in light of recent decisions in this circuit and the Supreme Court. The right of individual employees to sue under § 301 to vindicate their “uniquely personal” rights under a collective bargaining agreement has specifically been recognized in a series of cases. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978); Beriault v. Local 40, SuperCargoes and Checkers of the ILWU, 501 F.2d 258, 261 (9th Cir. 1974). See also Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). As we recognized in Rehmar v. Smith, 555 F.2d 1362, 1366 (9th Cir. 1976), jurisdiction depends on the nature of the action rather than the status of the parties. The mere fact that the action here is brought by individual union members does not preclude jurisdiction. Our next inquiry is whether the courts have found actions based on union constitutions cognizable under § 301. In Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), the Supreme Court rejected the contention that the “between” in this section refers to “suits” rather than “contracts” and held that an individual union member could sue his employer for breach of a collective bargaining agreement. In Retail Clerks International Association v. Lion Dry Goods, Inc., 369 U.S. 17, 28, 82 S.Ct. 541, 548, 7 L.Ed.2d 503 (1962), the Court held that § 301 is not restricted in application to suits involving collective bargaining agreements, but applies also to suits based on other types of contracts “significant to the maintenance of labor peace.” Several courts have permitted actions under" }, { "docid": "23523836", "title": "", "text": "Agreements. The district court points out that the trustees were not parties to the contract, and therefore undertook no duties under it. It urges, moreover, that the clause is merely a statement of the trustees’ fiduciary duties, and does not render those duties contractual in nature. Granted these premises, the conclusion which the district court drew, that it lacked § 301 jurisdiction, does not follow. The above quoted clause is a contractual recognition that the trustees have standing to sue to enforce the royalty provisions. It is settled law that a suit by non-party trustees to enforce those provisions may be entertained in federal district court by virtue of § 301. It is also settled law that employees, although not formally parties to a collective bargaining agreement, can bring a § 301 suit to enforce its terms. Smith v. Evening News Ass'n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Where the trustee may sue and wrongfully fails to do so, the beneficiary may sue the trustee as well as the party or parties the trustee failed to sue. Thus, the complaint states a non-frivolous cause of action under 29 U.S.C. § 301, which provides for suits in federal court for violation of such contracts. In Chemical Workers v. Pittsburgh Glass, 404 U.S. 157,181 n.20, 92 S.Ct. 383, 398 n.20, 30 L.Ed.2d 341 (1971), while holding that an employer had no statutory duty to bargain collectively with a union representing its employees over benefits for retirees, the Court observed: [t]his does not mean that when a union bargains for retirees — which nothing in this opinion precludes if the employer agrees — the retirees are without protection. Under established contract principles, vested retirement rights may not be altered without the pensioner’s consent. See generally Note, 70 Col.L.Rev. 909, 916 — 20 (1970). The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed. See Smith v. Evening News Assn., 371 U.S. 195, 200-201, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Lewis v." }, { "docid": "23566118", "title": "", "text": "the union presenting the grievance has breached its duty of fair representation, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), and that section 301 of the Labor Management Relations Act may provide the jurisdictional basis for employee suits against employers and labor organizations. That section provides that “[sjuits for violation of contracts between an employer and a labor organization representing employees . . . may be brought in any district court . . .” 29 U.S.C. § 185(a). The prerequisite for jurisdiction is a contract between an employer and a labor organization. Smith v. Evening News Ass’n, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). However, § 301 creates federal jurisdiction only over parties to the contract, and federal jurisdiction under § 301 is limited to “[sjuits for violation of contracts between an employer and a labor organization . . . 29 U.S.C. § 185. Thus in Aacon Contracting Co. v. Ass’n of Catholic Trade Unionists, 178 F.Supp. 129 (E.D.N.Y.1959), claiming that the defendant union attempted to compel plaintiff to breach a collective bargaining agreement it had with another union, plaintiff attempted to assert federal jurisdiction over the dispute even though there was no contractual relationship between plaintiff and defendant. The complaint was dismissed and the Second Circuit affirmed, 276 F.2d 958 (2d Cir. 1960), on the opinion of the trial judge: “The language of the statute is explicit. It specifically refers to suits for violation of contracts between an employer and a labor organization. In this case there is no contractual relationship between the parties.” 178 F.Supp. at 130. While clearly this does not prevent Sever, as an individual member of a signatory union from claiming under § 301, Smith v. Evening News Ass’n, supra, 371 U.S. at 200, 83 S.Ct. 267, he may only bring suit against the parties signatory to the agreement, and here the Eastern Conference is not a party. The Eastern Conference is not a party to any collective bargaining agreement and represents no employees directly; it has never been a party to" }, { "docid": "22864474", "title": "", "text": "if neither party is a union or an employer. Alvares v. Erickson, 514 F.2d 156, 162-64 (9th Cir.), cert, denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 106 (1975); see Smith v. Evening News Association, 371 U.S. 195, 200-01, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). The pension benefit eligibility rules, which Lillian alleges were violated, qualify as a contract between a labor organization and an employer. Alvares v. Erickson, supra, 514 F.2d at 161. Lillian’s second contention is that § 301 does riot encompass suits enforcing “uniquely personal” rights. She cites Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955), where the Court held that § 301 did not confer federal jurisdiction over a suit by a union to collect wages allegedly due its members under a collective bargaining contract. Three Justices of the six-Justice majority were concerned about the constitutionality of giving the federal courts jurisdiction of suits arising under the state law of contracts and, to avoid this problem, concluded that Congress did not intend to confer federal jurisdiction over suits for breaches of collective bargaining contracts “relating to compensation, terms peculiar in the individual benefit which is their subject matter . . . Id. at 460, 75 S.Ct. at 500 (opinion of Frankfurter, J.). Two justices saw the only issue as one of statutory interpretation and concluded that Congress did not intend “to authorize a union to enforce in a federal court the uniquely personal right of an employee ... to receive compensation for services rendered his employer.” Id. at 461, 75 S.Ct. at 501 (opinion of Warren, C. J.). Justice Reed characterized the suit as one for breach of individual employment contracts and not for violation of a collective bargaining agreement. He concluded that § 301 was not even literally applicable. Id. at 464, 75 S.Ct. 489. Two years later in Textile Workers Union v. Lincoln Mills, supra, the Court removed the basis for the constitutional doubts expressed by Justice Frankfurter in Westinghouse by holding that federal courts must fashion federal common law from" }, { "docid": "2148325", "title": "", "text": "to appellee Berens for failure to state a cause of action, and denied leave to amend the complaint. It dismissed the complaint as to the other ap-pellees for lack of federal jurisdiction. We need look no farther than the jurisdictional problem to affirm both actions of the district court. First of all, it is clear that jurisdiction cannot rest on section 301(a) of the Act (29 U.S.C. § 185(a)), which allows “Suits for violation of contracts between an employer and a labor organization” to be brought in a federal district court. Even though the agreement creating the Fund is such a contract, resulting from collective bargaining, see Thomas v. Reading Anthracite Co., 264 F.Supp. 339 (M.D.Pa.1966), no one of the appellees was a party to such contract. Appellants contend that as long as the contract is between an employer and a labor organization, “any party who claims rights thereunder may sue for breach”, citing Smith v. Evening News Ass’n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). In Smith, the Court allowed individual employees to sue employers under section 301, reasoning that restricting section 301 to “labor organizations” would stultify congressional policy in that employee claims are “to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based.” Smith, supra at 200, 83 S.Ct. at 270. It is difficult to see how such a rationale could justify allowing third parties who are not employers, unions, or employees to bring suit under this section. Even if Smith were to be so extended, however, the complaint against these ap-pellees does not and could not allege that they have violated a contract. While ap-pellees allegedly knowingly shared in the fruits of malfeasance and possible breach of contract on the part of the Fund’s trustees, they themselves can no more be successfully sued “for violation of contract” than one who buys a house from a seller, knowing that the seller has broken his exclusive .agency agreement with a broker. Of more appeal, assuming" }, { "docid": "18038999", "title": "", "text": "KILKENNY, Circuit Judge: Although the appellants attempt to argue the merits, this appeal presents for decision the sole issue of whether the district judge abused his discretion in dismissing appellants’ amended complaint for lack of prosecution. Appellants are non-registered ship clerks claiming rights to work on the waterfront in San Francisco. They are not members of the International Longshoremen’s & Warehousemen’s Union (ILWU), of which Local 34 acts as the exclusive collective bargaining agent of ship clerks in the San Francisco Bay area. Appellee, Pacific Maritime Association (PMA), is a corporation whose members are steamship companies and other waterfront employers. It acts as the collective bargaining representative of employers of ship clerks in the San Francisco Bay area. Other appellees are J. A. Robertson, as trustee of the ILWU and PMA supplemental wage benefit fund; Local 34 of the ILWU; and certain other employee members of the joint labor relations committee and certain employee trustees of certain funds. The background of this litigation commenced in June, 1962, when appellants suggested to some of the appellees that certain grievances be submitted to arbitration. Receiving no response, appellants, on August 13, 1962, filed a complaint in the district court alleging that PMA and ILWU had violated certain collective bargaining agreements by arbitrarily restricting hiring practices to fully registered ship clerks who were members of Local 34 of ILWU and that only union members were granted such registered status. On November 1,1962, the district court dismissed the complaint on the ground that it dealt with unfair labor practices over which the National Labor Relations Board had exclusive jurisdiction. In December of the same year, the Supreme Court in Smith v. Evening News, 371 U.S. 195, 83 S. Ct. 267, 9 L.Ed.2d 246 (1962) held that the primary jurisdiction of the board did not apply so as to prevent the institution of an action in federal court by individual employees for alleged violations of collective bargaining agreements. Based on the decision in Smith, our court, on February 28, 1963, in Alexander v. Pacific Maritime Assn., 314 F.2d 690 (9th Cir. 1963) reversed the decision" }, { "docid": "18039000", "title": "", "text": "that certain grievances be submitted to arbitration. Receiving no response, appellants, on August 13, 1962, filed a complaint in the district court alleging that PMA and ILWU had violated certain collective bargaining agreements by arbitrarily restricting hiring practices to fully registered ship clerks who were members of Local 34 of ILWU and that only union members were granted such registered status. On November 1,1962, the district court dismissed the complaint on the ground that it dealt with unfair labor practices over which the National Labor Relations Board had exclusive jurisdiction. In December of the same year, the Supreme Court in Smith v. Evening News, 371 U.S. 195, 83 S. Ct. 267, 9 L.Ed.2d 246 (1962) held that the primary jurisdiction of the board did not apply so as to prevent the institution of an action in federal court by individual employees for alleged violations of collective bargaining agreements. Based on the decision in Smith, our court, on February 28, 1963, in Alexander v. Pacific Maritime Assn., 314 F.2d 690 (9th Cir. 1963) reversed the decision of the district court and remanded the case with instructions to set aside the dismissal and grant appellants time within which to file an amended complaint. The amended complaint was filed on April 12, 1963, again charging discrimination in favor of union members in the manner in which employment and employment benefits were dispensed under the collective bargaining agreement. On May 6, 1963, appellees moved for a summary judgment on the ground that the appellants had failed to exhaust the arbitration procedures found in the collective bargaining contract or, in the alternative, to stay the proceedings until such procedures had been fully exhausted. On July 19, 1963, the district court granted a motion for stay of proceedings pending disposition of the arbitration proceedings. From this order an appeal was prosecuted, but dismissed on the ground that the stay was not a final judgment from which an appeal could be taken. Alexander v. Pacific Maritime Assn., 332 F.2d 266 (9th Cir. 1964). On June 5, 1964, the appellants filed a “grievance” pursuant to the grievance-arbitration procedures" }, { "docid": "6290847", "title": "", "text": "district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. At one time, the Supreme Court read this section to foreclose any suit by a labor union to enforce contract rights— like wages- — pertaining to individual members. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510. This interpretation, however, lasted only seven years; in Smith v. Evening News Association, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, the Court expressly disavowed it: The concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived. The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based. To exclude these claims from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law. This we are unwilling to do. 371 U.S. at 200, 83 S.Ct. at 270. Thus, nothing in the nature of the relief requested by the plaintiffs in this suit precludes their claim from being one under § 301 of the LMRA. Smith comes tantalizingly close to solving the second, and less tractable problem: can a claim for wages brought by individuals, not by their union, be considered as a claim under § 301? The case seems to hold that it should be so characterized: The same considerations foreclose respondent’s reading of § 301 to exclude all suits brought by employees instead of unions. The word “between,” it suggests, refers to “suits,” not “contracts,” and therefore only suits between" }, { "docid": "23523886", "title": "", "text": "jurisdiction of state law claims in federal court. That conclusion follows from two premises: first, that § 302(e) establishes a federal forum in which to try claims of a breach of fiduciary duty by a union pension fund trustee; and second, that § 301 provides a federal forum for claims of a violation of a collective bargaining agreement. The instant claim against the trustees partakes of both. It is essentially the same as the cause of action described in 4 A. Corbin, Contracts, § 779A, n.61 (1950). See n.10 supra. The issue before us is neither the legitimacy of such a cause of action nor the capacity of federal common law to encompass it, but rather the appropriateness of couching it in terms of § 301. As § 301 has been recognized as a source of federal common law of labor contracts since Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957), we conclude that the pensioner plaintiffs’ complaint arose under 29 U.S.C. § 301 and 28 U.S.C. § 1337. . The district court relied on Bowers v. Ulpiano Casal, Inc., 393 F.2d 421 (1st Cir. 1968). That case held that § 301 did not give federal courts jurisdiction of a fund trustees’ suit to redress a wrongful diversion of monies from the fund, where such wrongful diversion was alleged to be a violation of the collective bargaining agreement. However, we read that holding as a standing decision rather than a more general judgment on the question of a cause of action for tortious interference with contract under § 301. The First Circuit wrote: Appellants contend that as long as the contract is between an employer and a labor organization, “any party who claims rights thereunder may sue for breach”, citing Smith v. Evening News Ass’n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). In Smith, the Court allowed individual employees to sue employers under section 301, reasoning that restricting section 301 to “labor organizations” would stultify congressional policy in that employee claims are “to a large degree inevitably intertwined with" }, { "docid": "6290846", "title": "", "text": "been drawn to reflect the requirements of a state cause of action; so long as the facts pleaded disclose a federal claim, the defendant may remove it. See 1A Moore’s Federal Practice, ¶ 0.160. If, as the defendant argues, the plaintiffs’ state court complaint states a cause of action under § 301(a) of the Labor Management Rela tions Act, 29 U.S.C. § 185(a), then the action is removable as a matter of right, since that section expressly confers federal jurisdiction. Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 1970, 398 U.S. 235, 90 S.Ct. 1583, fn. 11 at 1589, 26 L.Ed.2d 199. The motion to remand, then, raises the question: is a suit like this one, by individual employees for wages allegedly due under a collective bargaining agreement, a suit under § 301(a) of the LMRA? Section 301(a) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. At one time, the Supreme Court read this section to foreclose any suit by a labor union to enforce contract rights— like wages- — pertaining to individual members. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510. This interpretation, however, lasted only seven years; in Smith v. Evening News Association, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, the Court expressly disavowed it: The concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived. The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably" }, { "docid": "7376714", "title": "", "text": "present motion, plaintiff contends that her claim for damages arising out of the alleged breach of her employment contract is not subject to the jurisdiction of the LMRA, nor covered by the terms of the collective bargaining agreement, because it was an exercise of managerial discretion. She also argues that her tort claims are not preempted by federal labor law since these causes of action exist independently of the collective bargaining agreement. Section 301 of the LMRA provides federal jurisdiction for suits alleging violations of contracts between an employer and a labor organization representing employees. 29 U.S.C. § 185(a). It is well established that a suit brought by an individual employee against his employer for breach of a collective bargaining agreement is among the class of cases that falls within the purview of § 301. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In the Third Count of plaintiff's complaint, she alleges 2. On or about November 13, 1984, plaintiff Ramona Cole was a member of UFW Local 1262 of the AFNCIO and, as such, was subject to an agreement between the said union and the defendants Pathmark and Supermarkets General Corporation. 4. In contravention of her contractual and legal rights plaintiff was fired without good cause____ Complaint at 4. Plaintiff’s assertion that this claim for damages for defendants’ breach of her employment contract does not arise under § 301 of the collective bargaining agreement is clearly contrary to the Supreme Court’s statements as to § 301’s preemptive effect. Preemption under § 301 was addressed by the Supreme Court in Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Machinists and Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), which decision, the Court later explained, affirmed that the petitioner’s action" }, { "docid": "3172480", "title": "", "text": "actions of the fund and the other defendants violate the terms of the collective bargaining agreement, which established the Pension Fund. Accordingly, he cites section 301 of the National Labor Relations Act, 29 U.S.C. § 185, as the jurisdictional basis for this suit. The Pension Fund, Local 4, and James P. Kelly have moved to dismiss the complaint on the grounds that this Court lacks subject-matter jurisdiction under section 301; that the complaint fails to state a claim for relief; that, since a suit for breach of the duty of fair representation is derivative, the plaintiff’s failure to allege a breach of the contract between the Union and the employer precludes such a suit against the Union; and that individual Union officials are not liable for alleged violations of a Union’s duty of fair representation. The plaintiff opposes these motions on the grounds that § 301 jurisdiction is proper, since he has alleged a violation of the collective bargaining agreement; that he has alleged entitlement to payments from the fund; and that the statement of a cause of action against the fund provides this Court with sufficient basis for jurisdiction over the Union and individual Union officials. II. Discussion Section 301 provides: (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) established the principle that individual employees may bring suit under § 301 to vindicate their rights arising from a collective bargaining agreement. See also Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Based on the policy underlying Evening News Association, which encourages an expansive rather than a narrow reading of § 301, courts have held that neither the employer nor the union, the parties to" }, { "docid": "21487656", "title": "", "text": "their claim to Section 301(a) jurisdiction are inapposite. In Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) the suit was based on an alleged breach of the seniority provisions of a collective bargaining agreement. It was there charged that the employer and the union had acted in a manner contrary to the explicit provisions of the labor agreement. In Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed. 2d 246 (1962) it was also charged that the union and the employer had violated rights of employees “arising from a collective bargaining contract.” (emphasis supplied). Humphrey and Smith hold only that Section 301(a) creates jurisdiction in the District Court to entertain suits “to vindicate individual employee rights arising from a collective bargaining contract * * * ” 371 U.S. 200, 83 S.Ct. 270 (emphasis supplied). In the instant case there is no complaint or contention that Budd and Union violated a provision of a collective bargaining agreement. For the reasons stated the Judgment of the District Court dismissing the plaintiffs’ action will be affirmed. . 61 Stat. 156, 29 U.S.C.A. § 185(a). . It is conceded that diversity jurisdiction does not exist. ; The Opinion of the District Court is not reported. . The Complaint did not state the dates of the plaintiff’s employment. . This agreement was for a term extending from November 20, 1961 to October 1, 1964. . Section 301(a) provides: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”" }, { "docid": "18039008", "title": "", "text": "without revealing the positions of the parties. The complaint, prolix as it is, does show that: 1. The plaintiffs are ship clerks steadily employed on the San Francisco waterfront. 2. They do not belong to the union (which refuses to admit them), but for collective bargaining purposes are represented by defendant, ILWU Local 34, which is the exclusive statutory bargaining agent. 3. ILWU and defendant, Pacific Maritime Association, which represents the employers, have reached a collective bargaining agreement which fixes the terms and conditions of the employment of all ship clerks. 4. The agreement distingushes between registered ship clerks and non-registered ship clerks, who though required to make payments to the union, are not members. The complaint, in effect, alleges that the defendants, by means of the collective bargaining agreement, have arbitrarily made second class employees out of the plaintiffs, have designed a system which keeps plaintiffs in the second class category permanently, and have imposed serious discriminations upon them. These allegations, if true, would warrant an inspection of the facts and law surrounding the collective bargaining agreement to determine whether ILWU has been guilty of such breaches of its fiduciary obligations to plaintiffs as to render the discriminatory provisions of the agreement void. See Steele v. L & NR Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). As indicated in the majority opinion defendants filed a motion for summary judgment on the ground that plaintiffs had failed to exhaust the arbitration procedures. Proceedings were then stayed and over plaintiffs’ protests (even to the extent of a fruitless appeal to this court) the case was sent off for arbitration. Under the provisions of the collective bargaining agreement the arbitrators had no power to pass upon plaintiffs’ contentions that the collective bargaining agreement was void. Pending termination of the arbitration, plaintiffs again tried to get the stay order lifted so that defendants would be required to answer the complaint and" }, { "docid": "7376713", "title": "", "text": "Notice of Motion to Dismiss or for Summary Judgment filed by the defendants states that they shall rely on their brief as well as deposition transcripts and affidavits. Plaintiff Cole has opposed the present motion with similar supporting materials. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, defendants’ motion will be addressed as a motion for summary judgment. A. Preemption Defendants assume that the Third Count of plaintiff’s complaint, which alleges a claim for breach of her employment contract, states a claim under § 301 of the Labor Management Relations Act (“LMRA”) for breach of a collective bargaining agreement. This assumption is based on the fact that at the time of her discharge, plaintiff was a member of Local 1262 and the terms and conditions of her employment were governed by a collective bargaining agreement between the union and her employer. In the present motion, defendants also assert that plaintiff’s tort claims arise out of her termination from employment and are thereby preempted by federal labor law. In opposition to the present motion, plaintiff contends that her claim for damages arising out of the alleged breach of her employment contract is not subject to the jurisdiction of the LMRA, nor covered by the terms of the collective bargaining agreement, because it was an exercise of managerial discretion. She also argues that her tort claims are not preempted by federal labor law since these causes of action exist independently of the collective bargaining agreement. Section 301 of the LMRA provides federal jurisdiction for suits alleging violations of contracts between an employer and a labor organization representing employees. 29 U.S.C. § 185(a). It is well established that a suit brought by an individual employee against his employer for breach of a collective bargaining agreement is among the class of cases that falls within the purview of § 301. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56," }, { "docid": "23523887", "title": "", "text": "§ 1337. . The district court relied on Bowers v. Ulpiano Casal, Inc., 393 F.2d 421 (1st Cir. 1968). That case held that § 301 did not give federal courts jurisdiction of a fund trustees’ suit to redress a wrongful diversion of monies from the fund, where such wrongful diversion was alleged to be a violation of the collective bargaining agreement. However, we read that holding as a standing decision rather than a more general judgment on the question of a cause of action for tortious interference with contract under § 301. The First Circuit wrote: Appellants contend that as long as the contract is between an employer and a labor organization, “any party who claims rights thereunder may sue for breach”, citing Smith v. Evening News Ass’n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). In Smith, the Court allowed individual employees to sue employers under section 301, reasoning that restricting section 301 to “labor organizations” would stultify congressional policy in that employee claims are “to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based.” Smith, supra at 200, 83 S.Ct. at 270. It is difficult to see how such a rationale could justify allowing third parties who are not employers, unions, or employees to bring suit under this section. 393 F.2d at 423 (emphasis supplied). The First Circuit failed to consider Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960), which preceded Smith and left no doubt of the Trustees’ standing to enforce a contribution provision of a collective bargaining agreement to which they were not parties. Thus, we disagree with the First Circuit’s standing conclusion, and do not feel constrained, as did the district court, to follow the First Circuit’s dictum concerning the applicability of §-301 to a breach of fiduciary duty. While we certainly do not hold that all breaches of fiduciary duty may be redressed in an action under § 301 of the Labor Management Relations Act," }, { "docid": "21487655", "title": "", "text": "can enforce, under Section 301(a), their “contract of hire” super-seniority rights, accorded under Budd’s pre-labor contract policy, even though subsequently negotiated collective bargaining agreements bargained away such rights. The plaintiffs seem to be oblivious of the fact that Section 301(a) only cre ates federal jurisdiction, in the absence of diversity of citizenship, with respect to “[s]mis for violation of contracts between an employer and a labor organization * * * or between any such labor organizations.” (emphasis supplied). Here the plaintiffs do not seek redress for violation of a collective bargaining agreement; what they seek is redress for an alleged violation by a labor contract of rights which they assert were independently, and pre-agreement, vested in them by their “contract of hire.” We are of the opinion that Section 301(a) did not confer jurisdiction upon the District Court to entertain this action and that it should have dismissed it for that reason. As we earlier stated, it is conceded that diversity jurisdiction does not exist here. The cases relied on by the plaintiffs to sustain their claim to Section 301(a) jurisdiction are inapposite. In Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) the suit was based on an alleged breach of the seniority provisions of a collective bargaining agreement. It was there charged that the employer and the union had acted in a manner contrary to the explicit provisions of the labor agreement. In Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed. 2d 246 (1962) it was also charged that the union and the employer had violated rights of employees “arising from a collective bargaining contract.” (emphasis supplied). Humphrey and Smith hold only that Section 301(a) creates jurisdiction in the District Court to entertain suits “to vindicate individual employee rights arising from a collective bargaining contract * * * ” 371 U.S. 200, 83 S.Ct. 270 (emphasis supplied). In the instant case there is no complaint or contention that Budd and Union violated a provision of a collective bargaining agreement. For the reasons stated the Judgment of the District Court" } ]

[ { "docid": "19787413", "title": "", "text": "had considered controlling precedent”), reh’g en banc denied, 974 F.2d 1279 (Fed.Cir.1992); Tucker v. Phyfer, 819 F.2d 1030, 1035 n. 7 (11th Cir. 1987) (prior circuit decision that “decided the case without any reference” to controlling Supreme Court opinions did not bind later panel) (questioned by Smith v. GTE Corp., 236 F.3d 1292, 1302-03 (11th Cir. 2001)); Wilson v. Taylor, 658 F.2d 1021, 1035 (5th Cir. Unit B Oct.1981) (subsequent panel not bound by prior decision that “did not purport to interpret” a binding Supreme Court decision). Cf. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (recognizing that where intervening authority, there Supreme Court precedent, “is clearly irreconcilable with our prior circuit authority,” “a three-judge panel ... should consider [itself] bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled”). We face a similar situation. No panel has attempted to reconcile Hill with the 1993 amendments, or recognized that Hill was formulated under language that has since been deleted entirely from the Guidelines. To be sure, some panels have used both Hill and the “professional or managerial discretion” standard to analyze the application of the enhancement, typically because both tests pointed in the same direction. See, e.g., Hoskins, 282 F.3d at 778-79 (noting that a store security guard who needed permission to take a bathroom break lacked any “professional or managerial discretion,” and also that the “two Hill indicia are noticeably absent”); Brickey, 289 F.3d at 1154-55 (applying enhancement to border guard who had “wide discretion in deciding whom to admit into the United States” and whose smuggling would be difficult to detect by the government under Hill). We cannot reconcile the two tests in this case, however, because the two are at loggerheads. Without a doubt, Contreras’ position at the prison gave her the “freedom to commit a difficult-to-detect wrong,” and she therefore occupied a position of trust, as construed by Hill. See 915 F.2d at 506. As a prison cook, she enjoyed unmonitored contact with the inmates, and was not thoroughly searched upon entering the prison." } ]

[ { "docid": "7786615", "title": "", "text": "of the physician’s relationship with an insurance company. The Government argues that the Appellant held a position of trust with respect to the insurance companies, because those companies extend privileges, as well as professional discretion and deference, to medical professionals. The Appellant argues that there is no such trust relationship between a chiropractor and an insurance company and that his position did not obscure the crime. A position of trust “is characterized by ‘substantial discretionary judgment that is ordinarily given considerable deference.’ The position of trust ‘must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons.’ ” United States v. Kay, 83 F.3d 98, 102 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 247, 136 L.Ed.2d 175 (1996) (quoting U.S.S.G. § 3B1.3, at n. 1). Because this is a matter of first impression in this Circuit, we look to our sister circuits for guidance. In United States v. Rutgard, a Ninth Circuit panel concluded that the sentence of the defendant, an ophthalmologist, was properly enhanced under § 3B1.3 for abuse of a position of trust where the defendant had submitted false claims to Medicare. 116 F.3d 1270, 1293 (9th Cir.1997). The panel concluded that “the government as- insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest.” Id. Similarly, in United States v. Adam, a Fourth Circuit panel concluded that a § 3B1.3 enhancement for abuse of trust was appropriately applied to an .internist who conducted a scheme in which he received illegal kickbacks in return for referring patients to a cardiologist. 70 F.3d 776, 778, 782 (4th Cir.1995). The care of the referred patients was paid for in part by federal welfare funds, in violation of 42 U.S.C. § 1320a-7b(b) (1988), which makes it illegal for any person to knowingly solicit or receive remuneration in return for patient referrals if payment for such services is made in part out of federal welfare funds. Id. at 778. The Fourth Circuit concluded" }, { "docid": "23328764", "title": "", "text": "1576-77 (9th Cir.1989); United States v. Myers, 21 F.3d 826, 829 (8th Cir.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 643 (1995). The district court, as we have already noted, also erred in prohibiting patient defense witnesses at this stage of the proceedings. Neither ruling, however, is ultimately harmful because the government stood or fell on the same evidence on which it tried the monetary transfer counts. The government’s position was that all of Rutgard’s practice was a fraud. The government failed to prove this proposition in terms of the monetary transaction counts and, for the three reasons already stated, failed to prove this proposition to establish that the $7.5 million dollars transferred by wire were subject to criminal forfeiture. THE SENTENCE The Sentencing Enhancements. That Rutgard had a leadership role in the crimes of which he was convicted was established with the proof of their commission. U.S.S.G. § 3Bl.l(a). That he took advantage of vulnerable victims and abused trust was established because, in a professional medical practice, trust between patient and physician is essential and because the government as insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest. U.S.S.G. §§ 3A1.1, 3B1.3; United States v. Stewart, 33 F.3d 764, 770 (7th Cir.1994) (upholding victim vulnerability enhancement where elderly targets of defendant’s scheme did not suffer financial loss but funeral homes did); United States v. Bachynsky, 949 F.2d 722, 735-36 (5th Cir.1991) (finding that patients were vulnerable victims of defendant’s scheme to defraud Department of Defense and insurance companies by submitting false diagnoses and opining that Department of Defense and insurance companies probably were); United States v. Adam, 70 F.3d 776, 782 (4th Cir.1995) (holding that physician making claims for Medicare enjoys a position of trust allowing him to commit difficult-to-detect wrongs constituting abuse of trust). The enhancement for obstruction of justice was based on four examples of “knowingly false testimony” pointed to by the government at sentencing and adopted by the district court. See United States v. Robinson, 63 F.3d 889, 892 (9th Cir.1995) (sentencing" }, { "docid": "22440622", "title": "", "text": "of discretion concerning her crime of false reporting to Medicare, as required for application of the abuse-of-trust enhancement. As her counsel explained at sentencing, Garrison lacked the discretion and ability to conceal the false cost reports submitted for Medicare reimbursement and relied on others to accomplish this deception. Garrison, 133 F.3d at 841. The court also credited Garrison’s contention that her false statements were made in reliance on financial experts, id. at 841 n. 19, which mitigated against finding that she had a position of trust. By comparison, Buck was in perhaps the best position, in terms of discretion and ability, to conceal her false reports from the government. All the false certifications passed through her. Her relationship to those assisting her was employer-employee, giving her significant leverage to gain the complicity of others. Notwithstanding the presence of CHC as intermediary, there is ample support in the record for a finding that Buck occupied a position of trust with respect to the government. Alternatively, there is little doubt that Buck occupied a position of trust with respect to CHC. In United States v. Sidhu, 130 F.3d 644, 655-56 (5th Cir.1997), we affirmed a § 3B1.3 enhancement where the position of trust was not held with respect to the main victim of the crime. There, a doctor defrauded various government programs and insurance companies by billing patients for services that were not performed or were not performed appropriately. Id. at 647. We based our affirmance on the defendant’s abuse of his patients’ trust. This holding may be explained by our determination, for purposes of another sentencing enhancement, that although the government and insurers may have been the “primary victims of his criminal conduct,” the patients also were victims of the fraud. Id. at 655. We interpret Sidhu to allow the enhancement whenever any victim of a criminal scheme placed the defendant in a position of trust that significantly facilitated the crime. The CHC, as sub-grantor, also was injured by Buck’s fraud, as it was unable to distribute the AmeriCorps funds to deserving sub-grantees that supported its mission. Buck’s position of trust" }, { "docid": "23192077", "title": "", "text": "is the primary victim in the instant offense.” PSR at 5, ¶ 10 (Sept. 25, 1995). As in Broderson, statutory reporting requirements do not create a position of trust relative to a victim of the crime. Furthermore, Garrison and Healthmaster did not report -directly to Medicare but to Aetna, the fiscal intermediary whose specific responsibility was to review and to approve requests for Medicare reimbursement before submitting those claims to Medicare for payment. Because of this removed relationship to Medicare, plus Aetna’s review of Health-master’s Medicare requests, Garrison and Healthmaster were not directly in a position of trust in relation to Medicare. While Medicare may have been the victim in this case, the section 3B1.3 enhancement is unavailable because Garrison did not occupy a sufficiently proximate position of trust relative to Medicare. Additionally, Garrison did not-hold a position of discretion concerning her crime of false reporting to Medicare, as required for application of the abuse-of-trust enhancement. As her counsel explained at sentencing, Garrison lacked the discretion and ability to conceal the false cost reports submitted for Medicare, reimbursement and relied on others to accomplish this deception. In contrast to Garrison’s lack of discretion and inability to produce the fraudulent Medicare reimbursement requests as section 3B1.3 envisions is a physician who possesses the expertise to create erroneous medical records and, consequently, fraudulent Medicare reports that are difficult to deteet and to question. Cf. United States v. Rutgard, 108 F.3d 1041, 1064 (9th Cir.) (holding that the section 3B1.3 enhancement was warranted because the ophthalmologist convicted for Medicare fraud abused the trust implicit in a “in a professional medical practice” because of the essential “trust between patient and physician ... and because the government as insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest”), amended on other grounds, 116 F.3d 1270, 1293 (9th Cir.1997); United States v. Adam, 70 F.3d 776, 782 (4th Cir.1995) (upholding section 3B1.3 enhancement and recognizing that “welfare fraud is terribly difficult to detect because physicians exercise enormous discretion: their judgments with respect to necessary treatments ordinarily" }, { "docid": "495936", "title": "", "text": "under U.S.S.G. § 3B1.3 based on Willett’s use of his position in the companies to facilitate the offenses. “This court reviews de novo the district court’s guidelines interpretations and reviews for clear error the district court’s findings of fact.” United States v. Miller, 607 F.3d 144, 147 (5th Cir.2010) (internal quotation marks and citation omitted). “A district court’s application of section 3B1.3 is a sophisticated factual determination that an appellate court reviews for clear error.” United States v. Pruett, 681 F.3d 232, 248 (5th Cir.2012) (internal quotation marks and citation omitted). Section 3B1.3 of the sentencing guidelines provides: “If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” U.S.S.G. § 3B1.3. We apply a two-part test to determine whether there has been an abuse of trust for purposes of the § 3B1.3 enhancement: “(1) whether the defendant occupies a position of trust and (2) whether the defendant abused her position in a manner that significantly facilitated the commission or concealment of the offense.” Miller, 607 F.3d at 148 (internal quotation marks and citation omitted). The PSR recommended the § 3B1.3 two-level enhancement based on Willett’s position as a co-owner of a DME distributor and his responsibility to submit legitimate and genuine claims to Medicare. Willett objected to the enhancement. At sentencing, Willett acknowledged that he probably occupied a position of trust for purposes of Miller part one but argued that there was not enough evidence to establish that he abused that position in a manner that significantly facilitated the commission or concealment of the offense for purposes of Miller part two. The district court applied Miller and overruled Willett’s objection, finding that there was credible circumstantial evidence that Willett was a co-owner of and had a position of authority in the companies and that he used that position to facilitate the commission or concealment of the offense, particularly when Willett told Canady, who spoke to Willett because he considered him a supervisor, to “keep [his] mouth shut.”" }, { "docid": "16935127", "title": "", "text": "a position of trust is “characterized by professional or managerial discretion,” and that individuals in such positions “are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.” U.S.S.G. § 3B1.3 cmt. n.l The ability to exercise such professional or managerial discretion is the “signature characteristic” of one who holds a position of trust. United States v. Ollison, 555 F.3d 152, 166 n. 9 (5th Cir.2009). Miller argues that she did not occupy a position of trust because she was merely an ordinary vendor in an arm’s length commercial relationship with the government. She contends that under the structure of the Medicare and Medicaid programs, the government’s trust is placed in physicians who provide CMNs and not in DME providers. The government counters that Medicare and Medicaid place substantial trust in DME providers, as evinced by witness testimony at the sentencing hearing. It further argues that circuit precedent applying § 3B1.3 to Medicare service providers compels affirmance. A § 3B1.3 enhancement was upheld in United States v. Iloani against a chiropractor who had conspire'd with his patients to submit fraudulent claims to private insurance companies for treatments that were never rendered. 143 F.3d 921, 922-23 (5th Cir.1998). We reasoned that “insurance companies usually rely on the honesty and integrity of physicians in their medical findings, diagnoses, and prescriptions for treatment or medication,” and that “insurance companies must rely on physicians’ representations that the treatments for which the companies are billed were in fact performed.” Id. at 923. In United States v. Gieger, the defendants, operators of a Medicare-licensed ambulance company, defrauded the government by billing for the transport of patients who were improperly claimed to be bed-confined. 190 F.3d 661, 663 (5th Cir.1999). This court held that Iloani barred the defendants’ attempt to overcome a § 3B1.3 enhancement, reasoning that “the defendants carried out their fraud by abusing a similar position of trust [to Iloani’s] with medical insurers.” Id. at 665. Miller seeks to distinguish herself from the ambulance operators in Gieger by arguing that the latter enjoyed considerable discretion, without physician oversight, to determine whether" }, { "docid": "7786616", "title": "", "text": "sentence of the defendant, an ophthalmologist, was properly enhanced under § 3B1.3 for abuse of a position of trust where the defendant had submitted false claims to Medicare. 116 F.3d 1270, 1293 (9th Cir.1997). The panel concluded that “the government as- insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest.” Id. Similarly, in United States v. Adam, a Fourth Circuit panel concluded that a § 3B1.3 enhancement for abuse of trust was appropriately applied to an .internist who conducted a scheme in which he received illegal kickbacks in return for referring patients to a cardiologist. 70 F.3d 776, 778, 782 (4th Cir.1995). The care of the referred patients was paid for in part by federal welfare funds, in violation of 42 U.S.C. § 1320a-7b(b) (1988), which makes it illegal for any person to knowingly solicit or receive remuneration in return for patient referrals if payment for such services is made in part out of federal welfare funds. Id. at 778. The Fourth Circuit concluded that Adam’s sentence was appropriately enhanced two levels for abuse of a position of trust because “[t]he position that Appellant enjoyed as a physician making claims for welfare funds is an example of the kind of position” contemplated by the abuse of trust provision. Id. at 782. The panel further stated that “welfare fraud is terribly difficult to detect because physicians exercise enormous discretion: their judgments with respect to necessary treatments ordinarily receive great deference and it is difficult to prove that those judgments were made for reasons other than the patients’ best interests.” Id. The relationship of Dr. Iloani to the private insurers in this case is closely analogous to the relationships of the defendants to the government as insurer in the above cases. We are persuaded by the reasoning of the Fourth and Ninth Circuits in these cases, and we therefore conclude that the district court did not err in concluding that Dr. Iloani abused a position of trust with the insurance companies in fraudulently billing such companies for medical care. Dr. Iloani" }, { "docid": "16935139", "title": "", "text": "in United States v. Hawkins, No. 09-40427, -Fed.Appx. -, 2010 WL 1923672, describes, the criminal scheme involved Miller and her company, as well as Miller’s sister, Dorothy Ann Hawkins, and the company owned by Hawkins, Genesis Medical Supply. . Miller’s citation of cases from our sister circuits is not availing. She cites, for example, United States v. Hayes, in which the Eighth Circuit reversed the enhancement of a defendant who submitted false Medicaid claims on behalf of a home care provider. 574 F.3d 460, 481 (8th Cir.2009). The Hayes court recognized that the Fifth Circuit, along with \"the majority of our sister circuits that have addressed the question have held that health care providers who defraud Medicaid or Medicare may be subject to the abuse-of-trust enhancement.” Id. at 480 (citing Gieger, 190 F.3d at 663, 665). It pointed out the Eleventh Circuit's outlier position holding that, “as a matter of law, a Medicaid-funded health care provider does not occupy a position of 'trust vis-a-vis Medicaid.” Id.; see United States v. Williams, 527 F.3d 1235, 1251 (11th Cir.2008) (“It could not have been intended that § 3B1.3 apply in every case where the defendant receives pecuniary gain by lying to the government.”). But the Eighth Circuit explicitly rejected that position, and instead held that \"an employee of a Medicaid-funded ... provider ... may occupy a position of trust.” Hayes, 574 F.3d at 481. GARWOOD, Circuit Judge, specially concurring. I concur in the result. I join in that portion of the opinion dealing with obstruction of justice. I also join in most of the opinion respecting abuse of position of trust. The undisputed evidence shows as a matter of law that Miller fraudulently represented that the medical certificates of necessity were genuine, when in fact they were fraudulent as she well knew and were fraudulently provided to Miller by the doctor signing them. I believe this is sufficiently analogous to the situations described in application note 3 to § 3B1.3 U.S.S.G. to warrant application of this enhancement. I would not go beyond that. . The evidence shows that due to the volume" }, { "docid": "16935138", "title": "", "text": "was supposed to do” renders us unable to discern whether it affirmatively found her to have acted willfully. Lacking certainty on the present record that the district court actually found Miller to have willfully omitted information, we must vacate the enhancement and remand the case for resentencing. In its discretion, the district court may opt to further develop the record on remand. CONCLUSION For the foregoing reasons, the enhancement for abuse of a position of trust is AFFIRMED, the enhancement for obstruction of justice is VACATED, and the case is REMANDED for resentencing. . The court utilized the stipulated restitution amount, less a credit for pending payments. . Commentary contained in U.S.S.G. application notes is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” United States v. Johnston, 559 F.3d 292, 295 n. 4 (5th Cir.2009) (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)) (internal quotation marks omitted). . As our opinion filed today in United States v. Hawkins, No. 09-40427, -Fed.Appx. -, 2010 WL 1923672, describes, the criminal scheme involved Miller and her company, as well as Miller’s sister, Dorothy Ann Hawkins, and the company owned by Hawkins, Genesis Medical Supply. . Miller’s citation of cases from our sister circuits is not availing. She cites, for example, United States v. Hayes, in which the Eighth Circuit reversed the enhancement of a defendant who submitted false Medicaid claims on behalf of a home care provider. 574 F.3d 460, 481 (8th Cir.2009). The Hayes court recognized that the Fifth Circuit, along with \"the majority of our sister circuits that have addressed the question have held that health care providers who defraud Medicaid or Medicare may be subject to the abuse-of-trust enhancement.” Id. at 480 (citing Gieger, 190 F.3d at 663, 665). It pointed out the Eleventh Circuit's outlier position holding that, “as a matter of law, a Medicaid-funded health care provider does not occupy a position of 'trust vis-a-vis Medicaid.” Id.; see United States v. Williams, 527 F.3d 1235, 1251" }, { "docid": "495938", "title": "", "text": "In determining whether a defendant occupies a position of trust for purposes of Miller part one, we look to his ability to exercise professional or managerial discretion. See Miller, 607 F.3d at 148. We have held that a DME provider occupies a position of trust because, in order to provide reimbursements, Medicare relies on the honesty and forthrightness of DME providers in their claim submissions. See id. at 150; see also Isiwele, 635 F.3d at 205 (affirming enhancement because defendant’s status as DME supplier placed him in relationship of trust with Medicare); United States v. Hawkins, 378 Fed.Appx. 402, 403 (5th Cir.2010) (unpublished) (affirming enhancement where defendant DME provider exercised managerial discretion, gave patient information to an employee to record on preauthorized certificates of medical necessity, received medical equipment, tracked patients and referrals, and paid invoices). The district court heard evidence that Willett was in a position of authority and held himself out as an owner of JS & H. See U.S.S.G. § 3B1.3 cmt. 3 (“This enhancement also applies in a case in which the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”). There was also evidence that Willett exercised authority in placing orders for equipment; delivering equipment to the hospitals and offices; picking up the delivery tickets for billing purposes; and making deposits to the bank. Furthermore, Willett signed the Medicare provider application for TOPS, in which he indicated that he was an owner of TOPS and certified that his signature bound TOPS to comply with the requirements of Medicare. Thus, Willett occupied a position of trust for purposes of the enhancement. In determining whether a defendant abused his position in a manner that significantly facilitated the commission or concealment of the offense for purposes of Miller part two, we look to whether a defendant occupies “a superior position, relative to all people in a position to commit the offense, as a result of [his] job.” Miller, 607 F.3d at 150 (citing United States v. Kay, 513 F.3d 432, 459" }, { "docid": "13832655", "title": "", "text": "district court’s method for calculating loss is consistent with past approaches approved by this court, and its conclusion is not clearly erroneous, Fair-ley’s argument on this point fails. ii. Abuse of Position of Trust Fairley also disputes the district court’s application of an enhancement for abuse of a position of trust pursuant to United States Sentencing Guidelines Manual § 3B1.3. Section 3B1.3 provides for a two point increase in the defendant’s offense level “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense[.]” U.S.S.G. § 3B1.3. “This court applies a two-part test to determine whether there has been an abuse of trust: ‘(1) whether the defendant occupies a position of trust and (2) whether the defendant abused her position in a manner that significantly facilitated the commission or concealment of the offense.’ ” United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (quoting United States v. Kay, 513 F.3d 432, 459 (5th Cir. 2007)). Application of this enhancement is “a sophisticated factual determination” that we review for clear error. Pruett, 681 F.3d 232 at 248. We have repeatedly upheld application of the enhancement for abuse of a position of trust in similar contexts. For example, we have upheld its application to owners of licensed durable medical equipment (DME) provider companies that bill Medicaid and Medicare. The enhancement applies because Medicaid and Medicare “depend[] upon the honesty and forthrightness of the DME provider in its claim submissions!!.]” Miller, 607 F.3d at 150. Owners of such companies occupy a position of trust because “the government entrusts them] to provide good faith, accurate information in seeking reimbursement.” Id.; see also United States v. Nowlin, 640 Fed.Appx. 337, 349-50 (5th Cir. 2016) (per curiam) (district court did not err in applying § 3B1.3 to owner of DME company); United States v. Usman, 460 Fed.Appx. 414, 418-19 (5th Cir. 2012) (per curiam) (district court did not err in applying § 3B1.3 to owner of private ambulance company). Fairley served as executive director of Pinebelt," }, { "docid": "23328765", "title": "", "text": "physician is essential and because the government as insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest. U.S.S.G. §§ 3A1.1, 3B1.3; United States v. Stewart, 33 F.3d 764, 770 (7th Cir.1994) (upholding victim vulnerability enhancement where elderly targets of defendant’s scheme did not suffer financial loss but funeral homes did); United States v. Bachynsky, 949 F.2d 722, 735-36 (5th Cir.1991) (finding that patients were vulnerable victims of defendant’s scheme to defraud Department of Defense and insurance companies by submitting false diagnoses and opining that Department of Defense and insurance companies probably were); United States v. Adam, 70 F.3d 776, 782 (4th Cir.1995) (holding that physician making claims for Medicare enjoys a position of trust allowing him to commit difficult-to-detect wrongs constituting abuse of trust). The enhancement for obstruction of justice was based on four examples of “knowingly false testimony” pointed to by the government at sentencing and adopted by the district court. See United States v. Robinson, 63 F.3d 889, 892 (9th Cir.1995) (sentencing enhancement for obstruction of justice through perjury requires that defendant gave “(1) false testimony, (2) on a material matter, (3) with willful intent”). The judgment that Rutgard committed perjury in testifying was a factual determination by the district court which we have no reason to disturb. See United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996) (factual findings during sentencing are reviewed for dear error). The enhancement for loss falls into a different category. Under the Guidelines, loss generally need only be established by a preponderance of evidence, not beyond reasonable doubt. United States v. Watts, - U.S. -, 117 S.Ct. 633, 637, 136 L.Ed.2d 554 (1997) (per curiam); United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (en banc). The loss caused by a scheme of mail fraud is properly reflected in sentencing. United States v. Fine, 975 F.2d 596, 600 (9th Cir.1992) (en banc). At sentencing, basing itself upon the evidence it heard during the 79 days of trial, the court found Rutgard’s practice “permeated with fraud.” On that basis it" }, { "docid": "13832656", "title": "", "text": "Application of this enhancement is “a sophisticated factual determination” that we review for clear error. Pruett, 681 F.3d 232 at 248. We have repeatedly upheld application of the enhancement for abuse of a position of trust in similar contexts. For example, we have upheld its application to owners of licensed durable medical equipment (DME) provider companies that bill Medicaid and Medicare. The enhancement applies because Medicaid and Medicare “depend[] upon the honesty and forthrightness of the DME provider in its claim submissions!!.]” Miller, 607 F.3d at 150. Owners of such companies occupy a position of trust because “the government entrusts them] to provide good faith, accurate information in seeking reimbursement.” Id.; see also United States v. Nowlin, 640 Fed.Appx. 337, 349-50 (5th Cir. 2016) (per curiam) (district court did not err in applying § 3B1.3 to owner of DME company); United States v. Usman, 460 Fed.Appx. 414, 418-19 (5th Cir. 2012) (per curiam) (district court did not err in applying § 3B1.3 to owner of private ambulance company). Fairley served as executive director of Pinebelt, an approved Community Housing Development Organization under HUD’s HOME Investment Partnerships Program. In this role, Fairley occupied a position of trust with respect to HUD that mirrors the role of a DME provider under Medicaid and Medicare. Testimony elicited at trial showed that HUD, through Hattiesburg, relied on Pi-nebelt’s representations of its own expenses in seeking reimbursement. Further, Fairley’s position as director of a CHDO facilitated the commission of the offense: only CHDO’s are eligible to receive HOME funds. Accordingly, the district court’s application of the abuse of a position of trust enhancement was not clear error. V. For the forgoing reasons, we VACATE Fairley’s conviction on counts two and three and REMAND to the district court for further proceedings consistent with this opinion. We AFFIRM Fairley’s conviction on count one. . See United States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015) (\"Our court’s practice when one, but not all counts, within a multi-part conviction has been vacated has generally .been to remand to allow the district court to resentence in the first" }, { "docid": "16935128", "title": "", "text": "who had conspire'd with his patients to submit fraudulent claims to private insurance companies for treatments that were never rendered. 143 F.3d 921, 922-23 (5th Cir.1998). We reasoned that “insurance companies usually rely on the honesty and integrity of physicians in their medical findings, diagnoses, and prescriptions for treatment or medication,” and that “insurance companies must rely on physicians’ representations that the treatments for which the companies are billed were in fact performed.” Id. at 923. In United States v. Gieger, the defendants, operators of a Medicare-licensed ambulance company, defrauded the government by billing for the transport of patients who were improperly claimed to be bed-confined. 190 F.3d 661, 663 (5th Cir.1999). This court held that Iloani barred the defendants’ attempt to overcome a § 3B1.3 enhancement, reasoning that “the defendants carried out their fraud by abusing a similar position of trust [to Iloani’s] with medical insurers.” Id. at 665. Miller seeks to distinguish herself from the ambulance operators in Gieger by arguing that the latter enjoyed considerable discretion, without physician oversight, to determine whether patients were ambulatory, whereas she, as a DME provider, could not provide any equipment without a CMN. We reject her argument, for two reasons. First, Miller effectively exercised the discretion that the Medicare and Medicaid programs entrust to physicians by knowingly completing CMNs for patients who had no need for the equipment provided. There was evidence that Miller obtained a set of pre-authorized, blank CMNs from Dr. Long and simply filled in patient names as they became known to her. Under the scheme she devised, Miller assumed the position of the certifying physician, and, like the Gieger defendants, she made the key decision whether a particular patient had a medical need for a wheelchair or scooter. Second, as the owner of AA Better Medical Supply, Miller exercised substantial managerial discretion, which the guidelines recognize as an independent basis for occupying a position of trust. See U.S.S.G. § 3B1.3 cmt. n.l. The PSR indicated that Miller directed and oversaw the business operations at both her company and a related company. She specifically instructed an employee to" }, { "docid": "495937", "title": "", "text": "manner that significantly facilitated the commission or concealment of the offense.” Miller, 607 F.3d at 148 (internal quotation marks and citation omitted). The PSR recommended the § 3B1.3 two-level enhancement based on Willett’s position as a co-owner of a DME distributor and his responsibility to submit legitimate and genuine claims to Medicare. Willett objected to the enhancement. At sentencing, Willett acknowledged that he probably occupied a position of trust for purposes of Miller part one but argued that there was not enough evidence to establish that he abused that position in a manner that significantly facilitated the commission or concealment of the offense for purposes of Miller part two. The district court applied Miller and overruled Willett’s objection, finding that there was credible circumstantial evidence that Willett was a co-owner of and had a position of authority in the companies and that he used that position to facilitate the commission or concealment of the offense, particularly when Willett told Canady, who spoke to Willett because he considered him a supervisor, to “keep [his] mouth shut.” In determining whether a defendant occupies a position of trust for purposes of Miller part one, we look to his ability to exercise professional or managerial discretion. See Miller, 607 F.3d at 148. We have held that a DME provider occupies a position of trust because, in order to provide reimbursements, Medicare relies on the honesty and forthrightness of DME providers in their claim submissions. See id. at 150; see also Isiwele, 635 F.3d at 205 (affirming enhancement because defendant’s status as DME supplier placed him in relationship of trust with Medicare); United States v. Hawkins, 378 Fed.Appx. 402, 403 (5th Cir.2010) (unpublished) (affirming enhancement where defendant DME provider exercised managerial discretion, gave patient information to an employee to record on preauthorized certificates of medical necessity, received medical equipment, tracked patients and referrals, and paid invoices). The district court heard evidence that Willett was in a position of authority and held himself out as an owner of JS & H. See U.S.S.G. § 3B1.3 cmt. 3 (“This enhancement also applies in a case in which" }, { "docid": "19036219", "title": "", "text": "medical equipment, Medicare entrusted her to render a necessary service to some of the most vulnerable members of her community. Moreover, Medicare authorized St. Junius to render those services with an attendant expectation that she would submit accurate information in seeking reimbursement from the Medicare program. See id. (noting that the functioning of government insurance programs relies heavily upon “the honesty and forthrightness of the DME provider in its claim submissions”). Having decided that St. Junius occupied a position of trust, we must now determine whether she used her position in a manner that significantly facilitated the commission of the health care fraud offenses at issue. We are satisfied that she did. St. Junius signed important documents as owner of TMS, issued pay checks to employees and contractors, and engaged in numerous other activities that helped facilitate this health care fraud conspiracy. Without St. Junius, it would have been extraordinarily difficult, if not impossible, for TMS to accomplish its criminal pursuits. Given those considerations, we affirm the district court’s application of the abuse of trust sentencing enhancement. B. Ramos 1. Sufficiency of the Evidence Ramos challenges her convictions under the Anti-Kickback Statute solely on the basis that the Government did not present sufficient evidence to prove that she “willfully” violated the statute. A proeedurally preserved challenge to the sufficiency of evidence is reviewed de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir.2012). When reviewing the sufficiency of the evidence, we view all evidence “in the light most favorable to the Government, with all reasonable inferences and credibility choices made in support of the jury’s verdict. The evidence is sufficient to support a conviction if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Ford, 558 F.3d 371, 375 (5th Cir.2009) (per curiam) (citation omitted). Ramos argues on appeal that she could not have willfully violated the Anti-Kickback Statute because she did not know that engaging in a commission-based pay arrangement with a Medicare provider was a violation of the law. Ramos contends that a conviction" }, { "docid": "19036218", "title": "", "text": "1; United States v. Miller, 607 F.3d 144, 148 (5th Cir.2010). The sentencing court should conduct a two-step inquiry when considering whether to apply U.S.S.G. § 3B1.3. See United States v. Ollison, 555 F.3d 152, 166 (5th Cir.2009). “First, the court must determine whether the defendant occupied a position of trust at all. If not, the inquiry ends and no enhancement accrues. If, however, this initial inquiry produces an affirmative response, the court must proceed to ascertain the extent to which the defendant used that position to facilitate or conceal the offense.” Id. at 165 (citation omitted). We hold that as the listed owner of TMS, St. Junius occupied a position of trust, which satisfies the first prong of this analysis. Her position and authority as owner of a licensed DME provider, “involved the type of complex, situation-specific decisionmaking that is given considerable deference precisely because it cannot be dictated entirely by, or monitored against, established protocol.” Miller, 607 F.3d at 150 (5th Cir.2010) (citations omitted). By issuing St. Junius a license to provide durable medical equipment, Medicare entrusted her to render a necessary service to some of the most vulnerable members of her community. Moreover, Medicare authorized St. Junius to render those services with an attendant expectation that she would submit accurate information in seeking reimbursement from the Medicare program. See id. (noting that the functioning of government insurance programs relies heavily upon “the honesty and forthrightness of the DME provider in its claim submissions”). Having decided that St. Junius occupied a position of trust, we must now determine whether she used her position in a manner that significantly facilitated the commission of the health care fraud offenses at issue. We are satisfied that she did. St. Junius signed important documents as owner of TMS, issued pay checks to employees and contractors, and engaged in numerous other activities that helped facilitate this health care fraud conspiracy. Without St. Junius, it would have been extraordinarily difficult, if not impossible, for TMS to accomplish its criminal pursuits. Given those considerations, we affirm the district court’s application of the abuse of trust" }, { "docid": "495939", "title": "", "text": "the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”). There was also evidence that Willett exercised authority in placing orders for equipment; delivering equipment to the hospitals and offices; picking up the delivery tickets for billing purposes; and making deposits to the bank. Furthermore, Willett signed the Medicare provider application for TOPS, in which he indicated that he was an owner of TOPS and certified that his signature bound TOPS to comply with the requirements of Medicare. Thus, Willett occupied a position of trust for purposes of the enhancement. In determining whether a defendant abused his position in a manner that significantly facilitated the commission or concealment of the offense for purposes of Miller part two, we look to whether a defendant occupies “a superior position, relative to all people in a position to commit the offense, as a result of [his] job.” Miller, 607 F.3d at 150 (citing United States v. Kay, 513 F.3d 432, 459 (5th Cir. 2007)). We have held that ownership of a DME provider places the owner in a position to defraud government insurance programs with ease. See Miller, 607 F.3d at 150; see also United States v. St. Junius, 739 F.3d 193, 209 (5th Cir.2013) (holding that owner of DME provider significantly facilitated fraud where she signed documents as owner, issued paychecks to employees and contractors, and engaged in other activities without which “it would have been extraordinarily difficult” for the provider “to accomplish its criminal pursuits”); United States v. Njoku, 737 F.3d 55, 78 (5th Cir.2013) (holding that registered nurse significantly facilitated conspiracy where she had some supervisory power over other employees and filled out forms on which Medicare relied). The district court heard evidence that Willett was present in Mrs. Willett’s office while she altered the codes; met with Mrs. Willett several times a day to discuss the business and review the checks; deposited the reimbursement checks to the bank; and distributed paychecks to employees. Canady testified that he heard Willett and Mrs. Willett" }, { "docid": "23115695", "title": "", "text": "section provides an enhancement for defendants who have “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” § 3B1.3. Valdez relies on precedent from the 11th Circuit to argue that a Medicare-funded care provider, as a matter of law, does not occupy a position of trust vis-a-vis Medicare. See United States v. Mills, 138 F.3d 928, 941 (11th Cir.1998). However, as Valdez acknowledges, this argument is foreclosed by circuit precedent. See United States v. Miller, 607 F.3d 144, 149 (5th Cir.2010) (holding that owner of a medical supply store who fraudulently billed Medicare occupied position of trust vis-a-vis Medicare); United States v. Iloani, 143 F.3d 921, 922-23 (5th Cir.1998) (holding that chiropractor occupies a position of trust with regard to the insurance companies that he bills). The district court did not err in applying the § 3B1.3 abuse of trust enhancement. 3. Mass-Marketing Valdez next challenges the district court’s imposition of a 2-level mass-marketing enhancement under § 2Bl.l(b)(2)(A)(ii). The Guidelines define mass-marketing as a “plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of persons to ... purchase goods or services....” § 2B1.1 cmt. n. 4(A); see United States v. Magnuson, 307 F.3d 333, 335 (5th Cir.2002). The district court applied the enhancement based on a flier that Valdez sent via mail to 16,626 El Paso residents in December 2006 and four television commercials shown on local news from April 2008 to December 2009, all advertising his International Institute of Pain Management and “reconstructive therapy,” which was prolotherapy. Valdez relies on United States v. Miller, 588 F.3d 560, 562, 568 (8th Cir.2009) to argue that the enhancement does not apply where the mass-marketing is not targeted at the specific victims of the fraud, which he argues were the Programs. This argument is foreclosed by circuit precedent. In Isiwele, this court rejected the Eighth Circuit’s reasoning in Miller and upheld the application of the mass-marketing enhancement to a defendant who had recruited beneficiaries in" }, { "docid": "23192078", "title": "", "text": "for Medicare, reimbursement and relied on others to accomplish this deception. In contrast to Garrison’s lack of discretion and inability to produce the fraudulent Medicare reimbursement requests as section 3B1.3 envisions is a physician who possesses the expertise to create erroneous medical records and, consequently, fraudulent Medicare reports that are difficult to deteet and to question. Cf. United States v. Rutgard, 108 F.3d 1041, 1064 (9th Cir.) (holding that the section 3B1.3 enhancement was warranted because the ophthalmologist convicted for Medicare fraud abused the trust implicit in a “in a professional medical practice” because of the essential “trust between patient and physician ... and because the government as insurer depends upon the honesty of the doctor and is easily taken advantage of if the doctor is not honest”), amended on other grounds, 116 F.3d 1270, 1293 (9th Cir.1997); United States v. Adam, 70 F.3d 776, 782 (4th Cir.1995) (upholding section 3B1.3 enhancement and recognizing that “welfare fraud is terribly difficult to detect because physicians exercise enormous discretion: their judgments with respect to necessary treatments ordinarily receive great deference and it is difficult to prove that those judgments were made for reasons other than the patients’ best interests.” (emphasis added)). Garrison did not have the expertise to produce the fraudulent Medicare reports; Kelly, a certified public accountant, vice president and second in command at Healthmaster, was tried and convicted for generating the fraudulent Medicare reports. Kelly and others working under his supervision, not Garrison, caused the fraudulent Medicare claims to be difficult for Aetna to detect. Accordingly, we conclude that the district court’s determination that Garrison occupied a position of trust with respect to Medicare was clearly erroneous because she did not produce the fraudulent Medicare claims, and the fiscal intermediary, Aetna, did not discover the erroneous reports .upon reviewing them. Garrison’s relationship with Medicare was too attenuated for her to have received the abuse-of-trust enhancement because Medicare relied on Aetna to review and to submit proper claims for Medicare .reimbursement. In addition to arguing that she did not occupy a position of trust relative to Medicare within the meaning of" } ]

[ { "docid": "20932975", "title": "", "text": "post-petition rents and charges, “deciphering § 365(d)(3) has been akin to navigating a freshly sown battlefield — like hidden mines, each clause has triggered considerable debate as to its intent and meaning.” Fruchter, supra, at 439. The truth in this analogy has been highlighted by a clear split on the issue raised in this case: whether a debtor-in-possession leasing nonresidential real property must pay in full all bills received from the landlord during the post-petition, pre-rejection period, regardless of whether some of those charges accrued prepetition. One group of courts in the minority has responded in the affirmative, adopting a strict “billing date” approach to the question. See, e.g., In re F & M Distribs., Inc., 197 B.R. 829 (Bankr.E.D.Mich.1995); In re Krystal Co., 194 B.R. 161 (Bankr.E.D.Tenn. 1996). These courts find § 365(d)(3) to be unambiguous and commit to following the “plain language” and “natural reading” of the subsection “without regard to any equitable or policy considerations.” In re F & M Distribs, Inc., 197 B.R. at 832; In re Krystal Co., 194 B.R. at 163. Relying on a “clarity sufficient to preclude [them] from indulging or imposing ... notions of fairness and equity,” In re F & M Distribs., Inc., 197 B.R. at 832, they hold that the “obligation” to pay the tax bill “arises” on the date specified in the lease, or the date the bill comes due. Another collection of courts in the minority has reached the same result, though by a slightly different route. See, e.g., Inland’s Monthly Income Fund, L.P. v. Duckwall-ALCO Stores, Inc. (In re Duckwall-ALCO Stores, Inc.), 150 B.R. 965 (D.Kan.1993); In re R.H. Macy & Co., 152 B.R. 869 (Bankr. S.D.N.Y.1993), aff'd, 1994 WL 482948 (S.D.N.Y. Feb. 23, 1994). These courts at least implicitly acknowledge the “accrual” theory — under which a debtor need only pay those charges which can be allocated to the post-petition, pre-rejection period — but contend that the approach has no bearing on a lease similar to the one in this case. They point out that the debtor-in-possession under such a lease does not have a statutory" } ]

[ { "docid": "18541327", "title": "", "text": "MEMORANDUM JOHN C. COOK, Bankruptcy Judge. This case is before the court upon the Amended and Restated Motion for Authority to Pay Certain Taxes filed by the Krystal Company, the debtor in this Chapter 11 case. The motion seeks permission of the court to pay in due course the real estate taxes that Krystal is obligated to pay under the terms of the numerous and various nonresidential real property leases to which it is a party. The issue to be decided is whether the taxes constitute “obligations” within the meaning of § 365(d)(3) of the Bankruptcy Code that are required to be paid by the debtor on a current basis. The Bankruptcy Code was amended in 1984 with the addition of § 365(d)(3), which in pertinent part provides: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. 11 U.S.C. § 365(d)(3). Krystal contends that the real estate taxes it is required to pay under the terms of its leases are “obligations” within the meaning of this section and that these obligations must be paid in full at the time they come due under the leases. The Official Committee of Creditors Holding Unsecured Claims (“Committee”) disagrees with Krystal’s reading of § 365(d)(3) and argues instead that tax obligations owed by the debtor to a landlord which come due under the terms of a lease during the postpetition — prerejection period (“prerejection period”) are payable, not in full, but only to the extent that the obligation can be apportioned or allocated to the prere-jection period. Thus, according to the Committee, tax obligations that could be said to have accrued during the prepetition period must not be paid under § 365(d)(3) in order to prevent windfalls to landlords at the expense of other unsecured creditors. Most courts agree that § 365(d)(3) is intended to require debtors to pay their rent obligations in full and without proration" }, { "docid": "13341616", "title": "", "text": "after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. 11 U.S.C. § 365(d)(3). The Morse Road lease is typical in its requirement that the Debtor pay rent in advance on the first day of each month. The requirement to pay one month’s rent on December 1 was an “obligation of the debtor” that arose after the order for relief and (one day) before the lease was rejected. Writing on a clean slate, we would prudently end our analysis with this plain language application of § 365(d)(3). The slate, however, is hardly clean. The bankruptcy court succinctly summarized the many reported decisions interpreting § 365(d)(3): There is a conflict in the cases as to whether section 365(d)(3) compels a debtor to pay all rent and other charges which become due under a lease during the post-petition prerejection period or whether, instead, it requires the debtor to pay only the rent and charges allocable to that period. Compare Santa Ana Best Plaza, Ltd. v. Best Prods. Co. (In re Best Prods. Co.), 206 B.R. 404, 406 (Bankr.E.D.Va.1997), with In re Krystal Co., 194 B.R. 161, 163 (Bankr.E.D.Tenn.1996).... [T]he courts have framed the issue as whether section 365(d)(3) by its terms clearly compels the debtor to pay in full obligations becoming due postpetition but prerejection, even though allocable to another time period, or whether its terms are sufficiently malleable to permit the court to construe them to require payment only of rent and other charges allocable to the postpetition prere-jection period. Koenig Sporting Goods, 221 B.R. at 738. Although the cases do not divide perfectly, the two approaches to § 365(d)(3) can be described as the Accrual (Allocation/Pro-ration) Approach (majority) and the Billing Date Approach (minority). A statement of the Billing Date Approach would be that any amount coming due under a lease in the postpetition, prerejection period must be paid in full by the debtor without regard to whether the payment pertains to a prepetition or postrejection benefit. Decisions that adopt the Billing Date Approach" }, { "docid": "18541328", "title": "", "text": "U.S.C. § 365(d)(3). Krystal contends that the real estate taxes it is required to pay under the terms of its leases are “obligations” within the meaning of this section and that these obligations must be paid in full at the time they come due under the leases. The Official Committee of Creditors Holding Unsecured Claims (“Committee”) disagrees with Krystal’s reading of § 365(d)(3) and argues instead that tax obligations owed by the debtor to a landlord which come due under the terms of a lease during the postpetition — prerejection period (“prerejection period”) are payable, not in full, but only to the extent that the obligation can be apportioned or allocated to the prere-jection period. Thus, according to the Committee, tax obligations that could be said to have accrued during the prepetition period must not be paid under § 365(d)(3) in order to prevent windfalls to landlords at the expense of other unsecured creditors. Most courts agree that § 365(d)(3) is intended to require debtors to pay their rent obligations in full and without proration as they come due during the prerejection period. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir.1994); Joshua Fruehter, To Bind or Not to Bind — Bankruptcy Code § 365(d)(8): Statutory Minefield, 68 Am.Bankr.L.J. 437, 460-62 (1994) (hereinafter Fruehter); contra In re Mr. Gatti’s, Inc., 164 B.R. 929, 937-42 (Bankr.W.D.Tex.1994) (disagreeing with the majority view but collecting the cases for and against it). As for tax obligations of the debtor coming due in the prerejection period, the courts are split. The majority hold that § 365(d)(3) requires a debtor to pay (as an administrative expense) only such taxes as can be allocated to the prerejeetion period, and these courts thus prorate tax bills that arrive during the prerejection period to the prepetition (unsecured claim) and prerejeetion (administrative claim) periods. They require payment under § 365(d)(3) only of those taxes that can be said to have “accrued” during the prerejection period. Schneider & Reiff v. William Schneider, Inc. (In re William Schneider, Inc.), 175 B.R. 769 (S.D.Fla.1994); Child World, Inc." }, { "docid": "13341618", "title": "", "text": "include Inland’s Monthly Income Fund, L.P. v. Duckwall-ALCO Stores, Inc. (In re Duckwall-ALCO Stores, Inc.), 150 B.R. 965 (D.Kan.1993) (holding that § 365(d)(3) is clear and unambiguous in requiring that the debtor comply with all obligations arising under the lease after the petition); In re Krystal Co., 194 B.R. 161, 163 (Bankr.E.D.Tenn.1996) (holding a plain reading of § 365(d)(3) precludes an accrual and pro-ration analysis); In re F & M Distribs., Inc., 197 B.R. 829, 832 (Bankr.E.D.Mich.1995) (“[B]ecause § 365(d)(3) is unambiguous, this Court must follow its plain language without regard to any equitable or policy considerations.”); and In re Appletree Markets Inc., 139 B.R. 417, 420 (Bankr.S.D.Tex.1992) (“[T]he plain meaning of Section 365(d)(3) provides for payment of obligations arising after the petition is filed, not before.”). Under the Accrual Approach, a debtor is required by § 365(d)(3) to pay only those sums coming due under a lease during the postpetition, prerejection period that pertain to benefits realized by the estate during that period. Under the Accrual Approach a debt- or is not required to pay for any benefit conferred before the petition is filed or after rejection occurs regardless of when the payment for that benefit became due under the lease. Decisions adopting some form of the Accrual Approach include Newman v. McCrory Corp. (In re McCrary Corp.), 210 B.R. 934, 940 (S.D.N.Y.1997) (“[T]he debtor-tenant’s obligations under the lease to pay real estate taxes accrues on a daily basis and ..., under § 365(d)(3), postpetition bills must be prorated so that the debtor only pays those charges accruing during the postpetition, prerejection period.” (footnote omitted)); Child World, Inc. v. Campbell/Massachusetts Trust (In re Child World, Inc.), 161 B.R. 571, 576 (S.D.N.Y.1993) (holding § 365(d)(3) only requires timely payment of lease obligations billed during the postpetition, prerejection period, that actually cover the postpetition, prerejection period); In re Victory Markets, Inc., 196 B.R. 6 (Bankr.N.D.N.Y.1996) (adopting Accrual Approach and finding that § 365(d)(3) is ambiguous in context of a lease obligation to reimburse a landlord for real estate taxes); In re Almac’s, Inc., 167 B.R. 4, 8 (Bankr.D.R.I.1994) (addressing “the appropriate" }, { "docid": "13341617", "title": "", "text": "Best Plaza, Ltd. v. Best Prods. Co. (In re Best Prods. Co.), 206 B.R. 404, 406 (Bankr.E.D.Va.1997), with In re Krystal Co., 194 B.R. 161, 163 (Bankr.E.D.Tenn.1996).... [T]he courts have framed the issue as whether section 365(d)(3) by its terms clearly compels the debtor to pay in full obligations becoming due postpetition but prerejection, even though allocable to another time period, or whether its terms are sufficiently malleable to permit the court to construe them to require payment only of rent and other charges allocable to the postpetition prere-jection period. Koenig Sporting Goods, 221 B.R. at 738. Although the cases do not divide perfectly, the two approaches to § 365(d)(3) can be described as the Accrual (Allocation/Pro-ration) Approach (majority) and the Billing Date Approach (minority). A statement of the Billing Date Approach would be that any amount coming due under a lease in the postpetition, prerejection period must be paid in full by the debtor without regard to whether the payment pertains to a prepetition or postrejection benefit. Decisions that adopt the Billing Date Approach include Inland’s Monthly Income Fund, L.P. v. Duckwall-ALCO Stores, Inc. (In re Duckwall-ALCO Stores, Inc.), 150 B.R. 965 (D.Kan.1993) (holding that § 365(d)(3) is clear and unambiguous in requiring that the debtor comply with all obligations arising under the lease after the petition); In re Krystal Co., 194 B.R. 161, 163 (Bankr.E.D.Tenn.1996) (holding a plain reading of § 365(d)(3) precludes an accrual and pro-ration analysis); In re F & M Distribs., Inc., 197 B.R. 829, 832 (Bankr.E.D.Mich.1995) (“[B]ecause § 365(d)(3) is unambiguous, this Court must follow its plain language without regard to any equitable or policy considerations.”); and In re Appletree Markets Inc., 139 B.R. 417, 420 (Bankr.S.D.Tex.1992) (“[T]he plain meaning of Section 365(d)(3) provides for payment of obligations arising after the petition is filed, not before.”). Under the Accrual Approach, a debtor is required by § 365(d)(3) to pay only those sums coming due under a lease during the postpetition, prerejection period that pertain to benefits realized by the estate during that period. Under the Accrual Approach a debt- or is not required to" }, { "docid": "13341619", "title": "", "text": "pay for any benefit conferred before the petition is filed or after rejection occurs regardless of when the payment for that benefit became due under the lease. Decisions adopting some form of the Accrual Approach include Newman v. McCrory Corp. (In re McCrary Corp.), 210 B.R. 934, 940 (S.D.N.Y.1997) (“[T]he debtor-tenant’s obligations under the lease to pay real estate taxes accrues on a daily basis and ..., under § 365(d)(3), postpetition bills must be prorated so that the debtor only pays those charges accruing during the postpetition, prerejection period.” (footnote omitted)); Child World, Inc. v. Campbell/Massachusetts Trust (In re Child World, Inc.), 161 B.R. 571, 576 (S.D.N.Y.1993) (holding § 365(d)(3) only requires timely payment of lease obligations billed during the postpetition, prerejection period, that actually cover the postpetition, prerejection period); In re Victory Markets, Inc., 196 B.R. 6 (Bankr.N.D.N.Y.1996) (adopting Accrual Approach and finding that § 365(d)(3) is ambiguous in context of a lease obligation to reimburse a landlord for real estate taxes); In re Almac’s, Inc., 167 B.R. 4, 8 (Bankr.D.R.I.1994) (addressing “the appropriate formula for determining when a tax obligation arises, for purposes of payment under § 365(d)(3)”); and In re Revco D.S., Inc., 111 B.R. 626, 629 (Bankr.N.D.Ohio 1989) (“Ail percentage rent earned from the beginning of the bankruptcy administration to the end of the Lease year should be paid as .... a postpetition expense of the Debtors’ estate [under § 365(d)(3).]” No portion relating to the prepetition period is allowed under § 365(d)(3).) See also Handy Andy, 144 F.3d at 1128 (adopting neither approach but holding that an “obligation to pay or reimburse the taxes that accrued prepetition is a prerather than post-petition obligation_ There is no indication that Congress meant to go any further than to provide a landlord exception to 503(b)(1), and thus no indication that it meant to give landlords favored treatment for any class of prepetition debts.”). The argument for the Billing Date Approach was ably stated in Krystal Company: The most natural reading of § 365(d)(3) leads to the conclusion that Congress meant to require payment of all the debt- or’s" }, { "docid": "13459676", "title": "", "text": "postpetition, prerejection period. In other words, the statute does not become ambiguous simply because the claim falls outside the period enumerated in the statute. In addition the Debtor argues, Judge Shapero’s ruling in % Off Cards is correct and the landlords have nothing more than a prepetition claim for rent, not an administrative claim and certainly not a claim under § 365(d)(3). The landlords, on the other hand, posit that Koenig- only applies when the claim arises in the postpetition, prerejection period. Accordingly, this Court is not bound by the Sixth Circuit’s conclusion that 11 U.S.C. § 365(d)(3) is unambiguous. Therefore the door is open to further analysis and even the conclusion that the pro-ration approach is the appropriate means to classify the landlords’ claims. In pertinent part, 11 U.S.C. § 365(d)(3) states that a trustee shall timely perform all the obligations of the debtor, except those specified in § 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding § 503(b)(1). The issue raised under the present motion is whether the Debtor’s obligation to the Lessor “arose” before the entry of the order for relief and whether it was an “obligation of the debtor ... arising from or after the order of relief’ within the meaning of the section. First, we think it helpful to revisit In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6th Cir.2000) and its forebears. In In re Koenig Sporting Goods, Inc., 221 B.R. 737 (Bankr.N.D.Ohio 1998), the Bankruptcy Court found: “it would appear that § 365(d)(3) was intended to assure the landlord payment of the ordinary monthly rent payments which become due in the post-petition, pre-rejection period.” Since Congress was no doubt well aware that rental is usually paid monthly in advance, it is not really possible to reconcile § 365(d)(3) with according the Debtor the option not to pay its monthly rent when due, even though payment would impinge to some extent upon normal bankruptcy principles and priorities ... Whether this same conclusion would follow if the" }, { "docid": "13341614", "title": "", "text": "leased spaces in shopping centers. Koenig filed Chapter 11 in August of 1997. It sold many locations during the Chapter 11 case and, after liquidating inventory, rejected leases at its remaining stores. Morse Road Company was the landlord for a rejected lease. Rejection of the Morse Road lease was effective on December 2, 1997. The Debtor vacated the property that day. According to the lease, monthly rent of $8,500 for December 1997 became due on December 1, 1997. This rent was “payable in advance on the first (1st) day of each and every calendar month.” (App. at 8) (Lease Agreement Between Morse Road Co. and Koenig Sporting Goods, Inc. at ¶ 5(a)). Morse Road demanded payment of $8,500 for the month of December, citing 11 U.S.C. § 365(d)(3). The Debtor responded that it was in possession for only two days in December 1997 and the rent should be prorated, producing a recovery of approximately $550. The bankruptcy court thoughtfully analyzed the conflicting case law interpreting § 365(d)(3) and concluded that “section 365(d)(3) was, at the least, intended to assure the landlord payment of ordinary monthly rent payments which become due during the postpetition prerejection period.” In re Koenig Sporting Goods, Inc., 221 B.R. 737, 740-41 (Bankr.N.D.Ohio 1998). The bankruptcy court acknowledged that requiring the Debt- or to pay a full month’s rent for December “would impinge to some extent upon normal bankruptcy principles and priorities,” but concluded that this dissonance was compelled by the choices Congress made when it enacted § 365(d)(3) in 1984 to protect nonresidential landlords from debtors in bankruptcy. Id. at 741. The bankruptcy court reserved the possibility that on other facts § 365(d)(3) might require “some discretion” to avoid “severe[ ] distortion of] fundamental bankruptcy principles.” Id. The Debtor timely appealed. IV. DISCUSSION The plain language of § 365(d)(3) fully supports the bankruptcy court’s conclusion that the Debtor must pay one month’s rent that became due under its lease on December 1, 1997. Section 365(d)(3) provides: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and" }, { "docid": "13459674", "title": "", "text": "has adopted this approach. See Inland’s Monthly Income Fund, L.P. v. Duckwall-ALCO Stores, Inc. (In re Duckwall-ALCO Stores, Inc.), 150 B.R. 965 (D.Kan.1993); In re Krystal Co., 194 B.R. 161 (Bankr.E.D.Tenn.1996); In re F & M Distributors, Inc., 197 B.R. 829 (Bankr.E.D.Mich.1995); In re Appletree Markets, Inc., 139 B.R. 417 (Bankr.S.D.Tex.1992). To the contrary, a majority of courts have adopted what is known as the “pro-ration approach.” Under this view, a debtor is required by 11 U.S.C. § 365(d)(3) to pay only those amounts due under a lease that pertain to the benefits realized by the estate during the postpetition, pre-rejection period regardless of when the payment became due. See Newman v. McCrory Corp. (In re McCrory Corp.), 210 B.R. 934 (S.D.N.Y.1997); In re Almac’s, Inc., 167 B.R. 4 (Bankr.D.R.I.1994); In re Revco D.S., Inc., 111 B.R. 626 (Bankr.N.D.Ohio 1989); Santa Ana Best Plaza, Ltd. v. Best Products Co. (In re Best Products Co.), 206 B.R. 404 (Bankr.E.D.Va.1997); In re All for A Dollar, Inc., 174 B.R. 358 (Bankr.D.Mass.1994); In re William Schneider, Inc., 175 B.R. 769 (S.D.Fla.1994). The Honorable Walter Shapero in In the Matter of The½ Off Card Shop, Inc., Case No. 00-48425-WS (Bankr.E.D.Mich. March 7, 2001) took the Sixth Circuit’s analysis in Koenig one step further. In % Off Cards, the rent under the leases was due on the first of each month for that month. The Debtor filed bankruptcy on June 2, 2000 and rejected the leases. The Debtor did not pay the June rent arguing that it was not required to do so under 11 U.S.C. § 365(d)(3). Judge Shapero found that because the obligation did not “arise from [or] after an order for relief,” the landlords held a prepetition claim for the full amount of the June rent. The Debtor argues that its February rent obligation originated on February 1, 2001. Consequently, it did not fall within the postpetition, prerejection period under 11 U.S.C. § 365(d)(3). Because the Sixth Circuit found the language of the statute unambiguous, the analysis still applies even when the due date for the rent payment falls outside of the" }, { "docid": "13341620", "title": "", "text": "formula for determining when a tax obligation arises, for purposes of payment under § 365(d)(3)”); and In re Revco D.S., Inc., 111 B.R. 626, 629 (Bankr.N.D.Ohio 1989) (“Ail percentage rent earned from the beginning of the bankruptcy administration to the end of the Lease year should be paid as .... a postpetition expense of the Debtors’ estate [under § 365(d)(3).]” No portion relating to the prepetition period is allowed under § 365(d)(3).) See also Handy Andy, 144 F.3d at 1128 (adopting neither approach but holding that an “obligation to pay or reimburse the taxes that accrued prepetition is a prerather than post-petition obligation_ There is no indication that Congress meant to go any further than to provide a landlord exception to 503(b)(1), and thus no indication that it meant to give landlords favored treatment for any class of prepetition debts.”). The argument for the Billing Date Approach was ably stated in Krystal Company: The most natural reading of § 365(d)(3) leads to the conclusion that Congress meant to require payment of all the debt- or’s obligations falling due under its lease until such time as the debtor rejects the lease in question. Essentially the statute requires the debtor to “timely perform” its “obligations ... under any unexpired lease .... ” until the lease has been assumed or rejected. That language clearly includes tax reimbursement payments to the landlord if and when called for by the lease. The problem is caused by the additional language of the statute, “arising from and after the order for relief,” which modifies the word “obligations.” Courts adopting the accrual theory believe this language allows them to adhere to the pre-1984 (presection 365(d)(3)) practice of prorating taxes between the prepetition and prere-jection periods because they mistakenly assume that the “arising from” language of the statute means that the obligation must somehow arise from the prerejection period — that is, be an administrative expense — before the obligation is payable. This court disagrees because other language within the statute, “notwithstanding section 503(b)(1) of this title,” directly precludes viewing such obligations as administrative expenses. The “notwithstanding” phrase means" }, { "docid": "15935563", "title": "", "text": "arose entirely postpetition and prerejection, but which covers in part a period of time that extends beyond rejection of the lease. Postpetition rent covering a period of time that extends into the postrejection period is “not a sunk cost that relates to a time before the bankruptcy case, but a charge for the consumption of a resource during the administration of the case ..., and costs of administration must be paid.” In re Comdisco, Inc., 272 B.R. 671, 674-75 (Bankr.N.D.Ill.2002) (citing 11 U.S.C. § 1129(a)(9)(A)). Handy Andy therefore does not constrain our analysis. Moreover, Handy Andy recognizes the purpose behind § 365(d)(3)’s enactment and does nothing to diminish the statutory protection afforded landlords for purely postpetition and prerejection obligations to pay rent. As we acknowledged in Handy Andy, landlords, unlike other creditors, are “forced to deal with [their] bankrupt tenant[s] on whatever terms the bankruptcy court impose[s]” because landlords cannot evict their tenant. 144 F.3d at 1128 (citing Robinson v. Chicago Hous. Auth., 54 F.3d 316, 317-18 (7th Cir.1995) (automatic stay prevents landlord from evicting tenant)). We noted that Congress passed § 365(d)(3) to relieve landlords of the uncertainty of collecting rent fixed in the lease “in full, promptly, and without legal expense” during the awkward postpetition prerejection period. Id. We therefore find Handy Andy supports our conclusion that § 365(d)(3) requires HA-LO to pay its November 2001 rent in full on November 1, the postpetition and prerejection day on which such payment was due to Center-Point under the terms of the lease. The Sixth Circuit addressed this exact question in Koenig Sporting Goods, Inc. v. Morse Road Co. (In re Koenig Sporting Goods, Inc.), 203 F.3d 986 (6th Cir.2000), and similarly held that rent must be paid on the day it is due even if it will cover a period of time after the lease is rejected. See id. at 989. In doing so, the court noted that “[t]he purpose of § 365(d) is to prevent parties in contractual or lease relationships with the debtor from being left in doubt concerning their status vis-a-vis the estate.” Id. (citations and" }, { "docid": "19288017", "title": "", "text": "Distribs., Inc., 197 B.R. at 831-32. The leases here require the tenant to pay all taxes when due and payable. Louisiana law provides that the “collection of taxes shall begin on the first day of January ... [and] shall become delinquent on the first day of February.” LA.REV.STAT.ANN. § 47:1997(B) (West 1990). The minority courts would presumably find that the taxes were an obligation arising in the postpetition, prerejection period, and therefore that the tenant was obligated to pay the tax bills in their entirety. See also In re Best Products Co., 206 B.R. 404, 405-06 (Bankr.E.D.Va.1997) (distinguishing between minority courts adopting a strict “billing date” approach and those acknowledging the “accnual” approach, but finding it inapplicable where the tenant’s obligation under the lease is to reimburse the landlord for taxes rather than a statutory obligation to pay the taxing authority). 3. The Southern District of New York In the Southern District of New York, Judges Goettel and Sotomayor have addressed the issue and reached different conclusions. In In re Child World, Inc., Judge Goettel found proration of the debtor’s tax bill during the postpetition, prerejection period appropriate. Judge Goettel first analyzed whether the term “obligations” as used in § 365(d)(3) provides any guidance with respect to the issue of whether a debtor-tenant’s lease obligations must be prorated. See 161 B.R. at 573-74. After concluding that § 365(d)(3) was ambiguous on this issue, he turned to the legislative history of § 365(d)(3). In Judge Goettel’s view, the legislative history suggested that § 365(d)(3) was enacted to prevent landlords from becoming involuntary postpetition creditors of the debtor; the section was enacted “to ensure that landlords received ‘current payment’ for their ‘current services.’” Id. at 575. However, [n]othing in the legislative history indicates that Congress intended § 365(d)(3) to overturn the long-standing practice under § 503(b)(1) of prorating debtor-tenant’s rent to cover only the postpetition, prerejection period, regardless of the billing date____ Allowing landlords to recover items of rent which are billed during the postpetition, prerejection period, but which represent payment for services rendered by the landlord outside this time period, would" }, { "docid": "11670645", "title": "", "text": "a pre-petition debt. Handy Andy’s lease obligations should be treated similarly. D. Case Law Interpreting Section 365(d)(3) The majority of courts which have considered the question have held that real estate taxes which accrue pre-petition but are not billed under a lease until post-petition are not obligations which must be timely complied with under § 365(d)(3). “The legislative history makes clear that Congress did not intend for courts applying § 365(d)(3) to rely mechanically on the billing date in determining which postpetition, prerejection obligations under nonresidential leases must be timely paid.” Child World, 161 B.R. at 577; see also In re Almac’s, Inc., 167 B.R. 4, 8 (Bankr.D.R.I.1994). It is a substantial ma jority which have joined together and have held that “rent should be prorated to cover only the postpetition, prerejection period, regardless of the fortuity of the billing date.” Id. (collecting eases). See Warehouse Club, 184 B.R. 316 (debtor’s contractual obligation to pay taxes did not originate, or arise, when bill came, but when taxes accrued); In re All for A Dollar, Inc., 174 B.R. 358, 361-62 (Bankr.D.Mass.1994) (pro-rating a debtors obligations under a lease, regardless of the billing date, is the closest relation to the priority scheme of the bankruptcy code); In re Ames Dept. Stores, Inc., 136 B.R. 353, 356 (Bankr.S.D.N.Y.1992) (date of reimbursement request is not controlling); In re Revco D.S., Inc., 111 B.R. 626 (Bankr.N.D.Ohio 1989) (only pro-rated percentage rent accruing from petition date to end of lease year is post-petition expense even though “due date” was post-petition); Matter of Swanton Corp., 58 B.R. 474 (Bankr.S.D.N.Y.1986) (equity requires proration where rejected leased provided for single annual payment of rent and rejections were only a few months into annual period); In re William Schneider, Inc., 175 B.R. 769, 771 (S.D.Fla.1994) (“The existence of the debt is not the same as an agreed date for payment of the debt.”). However, it must be noted that a growing minority of courts have held that as the taxes come due to the landlord post-petition, they require timely payment under the Bankruptcy Code. In re Krystal Co., 194 B.R." }, { "docid": "13459678", "title": "", "text": "Court were faced with the issue of awarding the landlord a year’s rental for two days occupancy, in the unlikely event rent was payable yearly in advance, is an open question. Logic would demand the same result, but the lack of precision and clarity in the language of § 365(d)(3) may indicate that Congress intended the courts to exercise some discretion where an inflexible approach to § 365 would severely distort fundamental bankruptcy principles. Id. at 741. When addressing the same issue in In re Koenig Sporting Goods, Inc., 229 B.R. 388 (6th Cir. BAP 1999) the Bankruptcy Appellate Panel postulated: “Left for another day is the question whether ambiguities of interpretation arise under § 365(d)(3) when a nonresidential lease requires substantial payments in arrears or imposes obligations that are fundamentally inconsistent with the other provisions of the Bankruptcy Code.” Id. at 394. On appeal, the Sixth Circuit found that the debtor in Koenig was obligated under the terms of the lease to pay rent in advance and that the obligation arose during the post-petition, pre-rejection period. The Sixth Circuit specifically stated that “under these circumstances” the statute is unambiguous and requires payment of a full month’s rent. “[A] court should not resolve questions of statutory interpretation so that a particular Bankruptcy Code section conflicts and disturbs the overall purpose and. function of the Code.” In re R.H. Macy & Co., 170 B.R. 69, 73 (Bankr.S.D.N.Y.1994). The overall purpose and function of the Bankruptcy Code is to strike a balance between creditor protection and debtor relief. With this in mind, we find that Koenig narrowly addressed the application of 11 U.S.C. § 365(d)(3) to the specific facts presented in that case, those being that the lease payment came due during the postpetition, prerejection time period. It did not dictate the same result in other circumstances, especially in cases where the same conclusion would be fundamentally inconsistent with the Bankruptcy Code. We find that under the present circumstances and the facts with which we are presented, we are not bound by the Sixth Circuit’s decision in Koenig. We also respectfully decline" }, { "docid": "13341642", "title": "", "text": "postpetition, prerejection period, if the lease is rejected. Under this scenario, the debtor pays for services the landlord will not be obligated to provide. See McCrory Corp., 210 B.R. 934 (A full year’s taxes fell due during the postpetition, prerejection period, covering a substantial postrejection period as well.); In re All for A Dollar, Inc., 174 B.R. 358 (Bankr.D.Mass.1994) (A six month tax bill became due during the postpetition, pre-rejection period, including taxes for three months after rejection.). Under these circumstances, a landlord can enter into a new lease for the property and charge the new tenant for the same services for which the debtor had already paid. Indeed, “a lessor has a duty to mitigate its damages.” Unsecured Creditors’ Committee of Highland Superstores, Inc. v. Strobeck Real Estate, Inc. (In re Highland Superstores, Inc.), 154 F.3d 573, 577 (6th Cir.1998). Regardless, the windfall payment again unfairly prejudices the debtor and other unsecured creditors. The windfall consequences of the performance date approach are not limited to scenarios that unfairly favor the landlord. This approach can also be prejudicial to the landlord. Suppose that under the parties’ lease, a year’s rent was due the day before the bankruptcy case was filed and was not paid. There would be no performance date during the postpetition, prerejeetion time period and thus no immediate payment to the landlord under § 365(d)(3). See McCrory Corp., 210 B.R. at 939. The prejudice resulting to the landlord in these circumstances is clear. Indeed, both the Panel and the bankruptcy court recognize that the performance date approach is too inflexible to deal with such circumstances fairly and justly. The Panel states, “Left for another day is the question whether ambiguities of interpretation arise under § 365(d)(3) when a nonresidential lease requires substantial payments in ar rears or imposes obligations that are fundamentally inconsistent with other provisions of the Bankruptcy Code.” (Panel Op. at 394.) The bankruptcy court stated, “[T]he lack of precision and clarity in the language of section 365(d)(3) may indicate that Congress intended the courts to exercise some discretion where an inflexible approach to section 365(d)(3)" }, { "docid": "13459673", "title": "", "text": "and the lease payment comes due during the post-petition, prerejection time period, a lessor is entitled to the full month’s rent, regardless of how many days after the rent became due the bankruptcy was filed. Specifically, the Court stated: Under the terms of the lease the debtor was obligated to pay Morse $8,500 in advance on the first of each month for that month’s rent. The specific obligation to pay rent for December 1997 arose on December 1, which was during the postpetition, prerejection period. Under these circumstances, § 365(d)(3) is unambiguous as to the debtor’s rent obligation and requires payment of the full month’s rent. This interpretation of the statute has come to be known as the “performance date approach.” Under this theory, “any amount coming due under a lease in the postpetition, prerejection period must be paid in full by the debtor without regard to whether the payment pertains to a prepetition or postrejection benefit.” In re Koenig Sporting Goods, Inc., 229 B.R. 388, 390 (6th Cir. BAP 1999). A minority of districts has adopted this approach. See Inland’s Monthly Income Fund, L.P. v. Duckwall-ALCO Stores, Inc. (In re Duckwall-ALCO Stores, Inc.), 150 B.R. 965 (D.Kan.1993); In re Krystal Co., 194 B.R. 161 (Bankr.E.D.Tenn.1996); In re F & M Distributors, Inc., 197 B.R. 829 (Bankr.E.D.Mich.1995); In re Appletree Markets, Inc., 139 B.R. 417 (Bankr.S.D.Tex.1992). To the contrary, a majority of courts have adopted what is known as the “pro-ration approach.” Under this view, a debtor is required by 11 U.S.C. § 365(d)(3) to pay only those amounts due under a lease that pertain to the benefits realized by the estate during the postpetition, pre-rejection period regardless of when the payment became due. See Newman v. McCrory Corp. (In re McCrory Corp.), 210 B.R. 934 (S.D.N.Y.1997); In re Almac’s, Inc., 167 B.R. 4 (Bankr.D.R.I.1994); In re Revco D.S., Inc., 111 B.R. 626 (Bankr.N.D.Ohio 1989); Santa Ana Best Plaza, Ltd. v. Best Products Co. (In re Best Products Co.), 206 B.R. 404 (Bankr.E.D.Va.1997); In re All for A Dollar, Inc., 174 B.R. 358 (Bankr.D.Mass.1994); In re William Schneider, Inc., 175" }, { "docid": "13459675", "title": "", "text": "B.R. 769 (S.D.Fla.1994). The Honorable Walter Shapero in In the Matter of The½ Off Card Shop, Inc., Case No. 00-48425-WS (Bankr.E.D.Mich. March 7, 2001) took the Sixth Circuit’s analysis in Koenig one step further. In % Off Cards, the rent under the leases was due on the first of each month for that month. The Debtor filed bankruptcy on June 2, 2000 and rejected the leases. The Debtor did not pay the June rent arguing that it was not required to do so under 11 U.S.C. § 365(d)(3). Judge Shapero found that because the obligation did not “arise from [or] after an order for relief,” the landlords held a prepetition claim for the full amount of the June rent. The Debtor argues that its February rent obligation originated on February 1, 2001. Consequently, it did not fall within the postpetition, prerejection period under 11 U.S.C. § 365(d)(3). Because the Sixth Circuit found the language of the statute unambiguous, the analysis still applies even when the due date for the rent payment falls outside of the postpetition, prerejection period. In other words, the statute does not become ambiguous simply because the claim falls outside the period enumerated in the statute. In addition the Debtor argues, Judge Shapero’s ruling in % Off Cards is correct and the landlords have nothing more than a prepetition claim for rent, not an administrative claim and certainly not a claim under § 365(d)(3). The landlords, on the other hand, posit that Koenig- only applies when the claim arises in the postpetition, prerejection period. Accordingly, this Court is not bound by the Sixth Circuit’s conclusion that 11 U.S.C. § 365(d)(3) is unambiguous. Therefore the door is open to further analysis and even the conclusion that the pro-ration approach is the appropriate means to classify the landlords’ claims. In pertinent part, 11 U.S.C. § 365(d)(3) states that a trustee shall timely perform all the obligations of the debtor, except those specified in § 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding" }, { "docid": "19288015", "title": "", "text": "to when the debtor’s “obligation” to reimburse the landlord for real estate taxes arises under a lease. As a result, they rely heavily on the legislative history behind the subsection, from which they glean that Congress sought only to ensure that landlords received “current payment” for “current services” provided. See, e.g., In re Child World, Inc., 161 B.R. at 575. In other words, they discern “[njothing in the legislative history [to indicate] that Congress intended to overturn the longstanding practice under § 503(b)(1) of prorating debtor-tenants’ rent to cover only the postpetition, prerejection period, regardless of billing date.” Id. at 575-76. 2. The Minority View A substantial minority of courts, however, have held that under § 365(d)(3), a debtor- tenant under a nonresidential property lease must pay in full all bills received from the landlord during the postpetition, prerejection period, regardless of when those charges accrued. See, e.g., In re Appletree Markets, Inc., 139 B.R. 417, 418-21 (Bankr.S.D.Texas 1992); In re Duckwall-ALCO Stores, Inc., 150 B.R. 965, 974-76 (D.Kan.1993); In re Child World, Inc., 150 B.R. 328, 331-32 (Bankr.S.D.N.Y.1993), rev’d, 161 B.R. 571 (S.D.N.Y.1993); In re R.H. Macy & Co., Inc., 152 B.R. 869, 872-74 (Bankr.S.D.N.Y.1993), aff'd, No. 93-4414, 1994 WL 482948 (S.D.N.Y. Feb. 23, 1994); Matter of F & M Distribs., Inc., 197 B.R. 829, 831-33 (Bankr.E.D.Mich.1995); In re Krystal Co., 194 B.R.161, 162-64 (Bankr.E.D.Tenn.1996). These courts find § 365(d)(3) to be unambiguous and purport to follow the “plain language” and “natural reading” of the subsection without regard to any equitable or policy considerations. See In re F & M Distribs., Inc., 197 B.R. at 832; In re R.H. Macy & Co., Inc., 152 B.R. at 873-74; In re Krystal Co., 194 B.R. at 163. In analyzing the language of § 365(d)(3), these courts find the words “obligation” and “arise” sufficiently unambiguous so as to make it clear that real estate taxes must be paid in full, without proration, at the time they come due under the terms of the lease, during the prerejection period. See In re Krystal Co., 194 B.R. at 162; In re F & M" }, { "docid": "13341615", "title": "", "text": "least, intended to assure the landlord payment of ordinary monthly rent payments which become due during the postpetition prerejection period.” In re Koenig Sporting Goods, Inc., 221 B.R. 737, 740-41 (Bankr.N.D.Ohio 1998). The bankruptcy court acknowledged that requiring the Debt- or to pay a full month’s rent for December “would impinge to some extent upon normal bankruptcy principles and priorities,” but concluded that this dissonance was compelled by the choices Congress made when it enacted § 365(d)(3) in 1984 to protect nonresidential landlords from debtors in bankruptcy. Id. at 741. The bankruptcy court reserved the possibility that on other facts § 365(d)(3) might require “some discretion” to avoid “severe[ ] distortion of] fundamental bankruptcy principles.” Id. The Debtor timely appealed. IV. DISCUSSION The plain language of § 365(d)(3) fully supports the bankruptcy court’s conclusion that the Debtor must pay one month’s rent that became due under its lease on December 1, 1997. Section 365(d)(3) provides: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. 11 U.S.C. § 365(d)(3). The Morse Road lease is typical in its requirement that the Debtor pay rent in advance on the first day of each month. The requirement to pay one month’s rent on December 1 was an “obligation of the debtor” that arose after the order for relief and (one day) before the lease was rejected. Writing on a clean slate, we would prudently end our analysis with this plain language application of § 365(d)(3). The slate, however, is hardly clean. The bankruptcy court succinctly summarized the many reported decisions interpreting § 365(d)(3): There is a conflict in the cases as to whether section 365(d)(3) compels a debtor to pay all rent and other charges which become due under a lease during the post-petition prerejection period or whether, instead, it requires the debtor to pay only the rent and charges allocable to that period. Compare Santa Ana" }, { "docid": "13459672", "title": "", "text": "The Debtor has not paid post-petition rent for the period of February 2-28, 2001 arguing that under In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6th Cir.2000); In re ½ Off Card Shop, Inc., Case No. 00-48425-WS (Bankr.E.D.Mich. March 7, 2001); and 11 U.S.C. § 365(d)(3) it is not required to do so. 11 U.S.C. § 365(d)(3) governs the obligations of a debtor-tenant to its landlord between the time a bankruptcy petition is filed and the time a debtor-tenant assumes or rejects the lease. The statute provides in pertinent part: The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The Sixth Circuit examined this statute in In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6th Cir.2000) and found it to be clear and unambiguous. The Court determined that when a lease is a month-to-month, payment-in-advance lease, and the lease payment comes due during the post-petition, prerejection time period, a lessor is entitled to the full month’s rent, regardless of how many days after the rent became due the bankruptcy was filed. Specifically, the Court stated: Under the terms of the lease the debtor was obligated to pay Morse $8,500 in advance on the first of each month for that month’s rent. The specific obligation to pay rent for December 1997 arose on December 1, which was during the postpetition, prerejection period. Under these circumstances, § 365(d)(3) is unambiguous as to the debtor’s rent obligation and requires payment of the full month’s rent. This interpretation of the statute has come to be known as the “performance date approach.” Under this theory, “any amount coming due under a lease in the postpetition, prerejection period must be paid in full by the debtor without regard to whether the payment pertains to a prepetition or postrejection benefit.” In re Koenig Sporting Goods, Inc., 229 B.R. 388, 390 (6th Cir. BAP 1999). A minority of districts" } ]

[ { "docid": "8429751", "title": "", "text": "for four hours even though as many as five agents were at times present and there was radio contact with potential reinforcements. If they could safely postpone the search to wait for a suspect to appear, they could equally wait for a warrant, subject, of course, to the possibility of interruption if the suspect came first. The longer they did nothing in such circumstances, the less credible would seem a claim that because of the urgency of the situation it was impracticable to call on the magistrate for a warrant. I would have been greatly concerned if, after four hours, they had chosen to enter the unattended car without one. Where the burden of obtaining a warrant can be readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight. It seems apparent, however, that the officers’ primary interest was not directed to the car, but was to lie in ambush, with the car as bait. This is not a case where the officers, having grounds and opportunity to obtain a search warrant, waited and sought to substitute seeing someone committing a felony on the premises as an excuse for making a warrantless entry. Cf. Niro v. United States, 388 F.2d 535 (1st Cir. 1968). Here the officers did not need an excuse to enter, but chose, instead, to concentrate on making an arrest. When the defendant arrived and drove off in a ear known to contain contraband, he was committing a felony in their presence, and they had an immediate right to arrest him. I see no reason why they could not then assert, in connection with the arrest, exigent circumstances with respect to the car. Carroll v. United States, ante; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964). In spite of the limitations that a rigid application of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) might suggest, I would be loath to say that police, having" } ]

[ { "docid": "4481952", "title": "", "text": "Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L. Rev. 835 (1974). . Cady, supra, is inapposite. That case affirmed the power of local police, charged with a “community caretaking” function, to search an immobilized and unoccupied automobile in police custody but stored in an open lot, where there is reason to believe it may contain a dangerous weapon — another exigent circumstance. . The holding, furthermore, was expressly confined to searches of automobile exteriors: [W]e are not confronted with any issue as to the propriety of a search of a car’s interior. ‘‘Neither Carroll . . . nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even witii probable cause may be made without the extra protection for privacy that a warrant affords.” Chambers v. Maroney, 399 U.S. at 50, 90 S.Ct. at 1980. Cardwell v. Lewis, 417 U.S. 583, 592, 94 S.Ct. 2464, 2470, 41 L.Ed.2d 325 (1974). . Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The burden of proof is on the state to demonstrate voluntariness. Id. 248-249, 93 S.Ct. 2041. . The informant tipped the officer that the defendant was in possession of a weapon as well as narcotics, and indicated where on the defendant’s person the officer could expect to find the weapon. The officer walked over to Hie defendant, who sat alone in a parked car, and asked him to open the car door. Instead, the defendant rolled down his window. The officer reached in and removed a weapon from the precise spot on the defendant’s body that the informant had described. . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), decided after the trial of this case, is inapposite. That case established that police have authority to conduct a search incident to any lawful full custody arrest, without regard to .the nature of the offense. In short, Robinson presumes the existence of probable cause for arrest. The Court, in Robinson, did not directly address the problem of pretext arrests. However, a" }, { "docid": "9658013", "title": "", "text": "protected the officers. One of the approximately twenty law enforcement officers participating in the search could easily have detained the defendant during the search. In this time, the police could have inquired of the proper authorities to learn whether the gun was registered, or they could have requested the defendant to provide proof of registration as required by 26 U.S.C. § 5841(e). Unless these inquiries gave them probable cause to arrest Cecil, the officers should have released him upon completion of the search. Instead, the police handcuffed the defendant and used him as a human shield to protect them as they searched the house, on the theory that if any occupants of the house fired on the police, “Cecil would take the brunt of it.” He was then taken to police headquarters on charges of being in possession of an unregistered, sawed-off shotgun. I cannot accept the majority’s conclusion that the police have probable cause to arrest anyone found in possession of a sawed-off shotgun in the absence of probable cause to believe it is unregistered. Cf., United States v. Bonds, 422 F.2d 660 (8th Cir. 1970). To my knowledge, there are no cases which have decided this precise point. It may be that probable cause for such an arrest could be established in most communities by showing either that there were no sawed-off shotguns registered in a com munity, or if there were such guns registered, that they were in the hands of gun collectors and others known to the police, and by showing further that the police were aware of these facts. On the basis of this record, therefore, I do not think that the police had reasonable cause for believing that the defendant had violated any law. While Congress might be well advised to make the registered or unregistered possession of such weapons a violation of federal law, it has not done so; and neither we, by judicial fiat, nor the police, by their arrest policies, can amend the law to accomplish that result. Requiring proof of probable cause to believe a gun is unregistered will not" }, { "docid": "22054945", "title": "", "text": "either could obtain a weapon from or destroy the contents of the suitcase was eliminated. The appellants argue further that since the suitcase was opened after both Papa and DiNapoli were outside of the car, the suitcase was not in the area “within [the] immediately control” of either so as to justify a search under Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). While the Government would justify the search under United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), on the broad basis that arresting officers may properly take, examine and preserve for use “the personal effects of the accused,” we need not go so far. Here the suitcase was “closely related to” the reason appellant was arrested and the reason the auto was stopped, see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), and there was probable cause to believe, as these officers did, that the suitcase contained contraband. The Supreme Court has made it clear, moreover, that a different set of rules prevails as to searches of automobiles (as opposed to homes or offices) “provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970) (search for guns and stolen money); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); but cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (police entering upon private property to seize and search unoccupied vehicle). Here there was, as we have said, probable cause to think that the suitcase in the auto contained narcotics. The fact that Papa and appellant DiNapoli had been apprehended makes no difference, United States v. Christophe, 470 F.2d 865, 868-69 (2d Cir.), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 36 L.Ed.2d 684 (1972), for to have taken the time to obtain a warrant to search a vehicle driven by one alleged to be" }, { "docid": "9911023", "title": "", "text": "by suppressing the firearms which were found during the otherwise lawful search. Virgin Islands v. Gereau, 502 F.2d 914, 926-28 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Falley, 489 F.2d 33, 40-41 (2d Cir. 1973). Appellant’s statements that the weapons were unregistered were not necessary to give the police officers probable cause to seize the weapons once they were discovered. The very nature of the objects — a sawed-off shotgun and a sawed-off carbine — provided probable cause to believe the firearms were contraband. The Second Circuit has explained, “While it is possible for a person to register and therefore possess legally a sawed-off shotgun or an automatic weapon, it is not a prerequisite for a legal seizure that the officers know at the time of the search that the seized weapons were not registered. United States v. Story, 463 F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. Cecil, 457 F.2d 1178,1180-81 (8th Cir. 1972); United States v. Zeidman, 444 F.2d 1051, 1054 (7th Cir. 1971); United States v. Ciaccio, 356 F.Supp. 1373, 1378 (D.Md. 1972). “As the Ninth Circuit noted in Porter v. United States, 335 F.2d 602, 607 (1964), cert. denied, 379 U.S. 983, 85 S.Ct. 695,13 L.Ed.2d 574 (1965), ‘a sawed-off shotgun in private hands is not an intrinsically innocent object. The possession of it is a serious crime, except under extraordinary circumstances.’ In 1972, there were less than 15,000 registered sawed-off shotguns in the United States, most of which were registered to governmental agencies for training purposes or to residents of Western states. United States v. Cecil, supra, 457 F.2d at 1182 n.1 (Heaney, J., dissenting).” United States v. Canestri, 518 F.2d 269, 274—75 (2d Cir. 1975). In addition, here the sawed-off shotgun was found concealed in a duffel bag beneath a workbench in appellant’s cellar, reinforcing the suspicion that it was illegally possessed. Accordingly, the district court correctly concluded that the firearms were not seized as a “fruit of the poisonous tree.”" }, { "docid": "22258613", "title": "", "text": "that the search was incident to Feldman’s arrest. . Feldman draws attention to the law in California prior to June 1982 which held that an inventory search of the contents of a vehicle not in plain view is unlawful absent either a warrant or exigent circumstances. Mozzetti v. Superior Court, 4 Cal.3d 699, 711-12, 484 P.2d 84, 92, 94 Cal.Rptr. 412, 420 (1971). In Proposition 8, California voters instructed the state’s courts to apply federal constitutional standards in deciding whether evidence should be excluded at trial. \"What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” In re Lance W., 37 Cal.3d 873, 886-87, 694 P.2d 744, 752, 210 Cal.Rptr. 631, 639 (1985) (emphasis in original). We consider the search under federal constitutional law only. . Opperman emphasized that cars carried a lesser expectation of privacy than other personal belongings. 428 U.S. at 367, 96 S.Ct. at 3096. In United States v. Monclavo-Cruz, 662 F.2d 1285, 1289 (9th Cir.1981), we held that \"the community caretaking functions of the police are usually well served by simply inventorying personal baggage as a unit without searching it.” In Monclavo-Cruz, the court held that a purse carried by the arrestee could not be searched without a warrant. The court did not address \"under what circumstances routine inventory searches would be lawful under Opperman.\" Id. at 1289 n. 2. In Monclavo-Cruz, however, we were careful to note that \"the police had no reason to believe that the purse contained weapons or explosives.” Id. at 1289. . Manavian’s affidavit makes clear that he recognized that instead of searching the car immediately, he could impound the car and conduct an inventory search at the police lot. With the benefit of hindsight that the car contained only a toy gun, it may be that impounding and towing would have been a preferable means of ensuring that the car was not vandalized (four officers were present at Feldman’s" }, { "docid": "14297818", "title": "", "text": "an exception to the warrant requirement justifying an intrusion greater than that necessary to the performance of the officer’s caretaking duties. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325, 336 n.8 (1974); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Lawson, supra at 471—472. Yet, that is the only justification offered to uphold the search and seizure of the weapon here. This was not an inventory search; the appellant was not under arrest; and there was no possibility that the duffel bag would be carried away before the officers could obtain a warrant. The majority’s reliance on the automobile cases is also in error. None hold that probable cause alone is sufficient to justify a warrantless search. In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. * * * Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981 (1970). . I continue to adhere to the view that * * * police [do not] have probable cause to arrest anyone found in possession of a sawed-off shotgun in the absence of probable cause to believe [the weapon] is unregistered. * * * United States v. Cecil, 457 F.2d 1178, 1181 (8th Cir. 1972) (dissenting opinion) (citation omitted). There was no showing here that the officers had reason to believe the weapon was not registered to the appellant. . The observation of Judge Aldrich in United States v. Church, 490 F.2d 353, 356 (9th Cir. 1973), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974), is well taken: * * * Where the burden of obtaining a warrant can be" }, { "docid": "14297819", "title": "", "text": "on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. * * * Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981 (1970). . I continue to adhere to the view that * * * police [do not] have probable cause to arrest anyone found in possession of a sawed-off shotgun in the absence of probable cause to believe [the weapon] is unregistered. * * * United States v. Cecil, 457 F.2d 1178, 1181 (8th Cir. 1972) (dissenting opinion) (citation omitted). There was no showing here that the officers had reason to believe the weapon was not registered to the appellant. . The observation of Judge Aldrich in United States v. Church, 490 F.2d 353, 356 (9th Cir. 1973), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974), is well taken: * * * Where the burden of obtaining a warrant can be readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight. . In deciding whether an inventory search was necessary and reasonable, we quoted with approval from Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, at 417, 484 P.2d 84, at 89: This contention is rebutted by recognition of the vehicle owner’s countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner’s property against the owner’s rights under the Fourth Amendment, we observe that items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property. United States" }, { "docid": "6313093", "title": "", "text": "automatically give the police the right to search. “[L] awful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,” * * * the reason for and the nature of the custody may constitutionally justify the search. Cooper v. California, supra at 61 of 386 U.S., at 791 of 87 S.Ct. It is unnecessary for us to determine all the reasons for, and natures of police custody that might justify a search; here the only justification for the search is bare police custody of the vehicle. While police custody may justify reasonable measures to protect the vehicle itself (i. e., rolling up the windows and locking the doors), or property within plain view in the automobile, such reasonable protective measures do not extend to breaking into a locked trunk. We find ourselves in agreement with the position taken by the California Supreme Court in addressing the contention that the inventory procedures are necessary and reasonable: This contention is rebutted by recognition of the vehicle owner’s countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner’s property against the owner’s rights under the Fourth Amendment, we observe that items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property. Mozzetti v. Superior Court, 94 Cal.Rptr. at 417, 484 P.2d at 89; accord Boulet v. State, 495 P.2d at 509. It is not as obvious to us, as it appears to be to some courts, why the inventory procedure offers the police any more protection against false claims than would a standard policy of locking the car arid returning the keys to" }, { "docid": "9911022", "title": "", "text": "entitled to Miranda warnings. Even if we assume that the warnings were required, there is ample evidence supporting the district court’s finding below that the firearms were not the fruits of appellant’s statements but were obtained “ ‘by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407,417, 9 L.Ed.2d 441 (1963). Indeed, the district court found that the discovery of the firearms was “wholly unrelated” to appellant’s statements regarding the firearms. Police officers had already started their search of the cellar, where the firearms were discovered, before appellant’s statements were made. In their search for the implements used in the bombing, the police officers certainly would have uncovered the firearms regardless of appellant’s statements. Appellant evidently did not lead the officers to the weapons, and one of them was found in a duffel bag beneath a workbench. As the firearms were discovered by a means wholly independent of the alleged primary illegality, no purpose underlying the exclusionary rule would be served by suppressing the firearms which were found during the otherwise lawful search. Virgin Islands v. Gereau, 502 F.2d 914, 926-28 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Falley, 489 F.2d 33, 40-41 (2d Cir. 1973). Appellant’s statements that the weapons were unregistered were not necessary to give the police officers probable cause to seize the weapons once they were discovered. The very nature of the objects — a sawed-off shotgun and a sawed-off carbine — provided probable cause to believe the firearms were contraband. The Second Circuit has explained, “While it is possible for a person to register and therefore possess legally a sawed-off shotgun or an automatic weapon, it is not a prerequisite for a legal seizure that the officers know at the time of the search that the seized weapons were not registered. United States v. Story, 463 F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. Cecil, 457 F.2d 1178,1180-81" }, { "docid": "20341432", "title": "", "text": "154, 45 S.Ct. at 285, 69 L.Ed. at 552. The exception to the warrant requirement which was here noted by the Carroll court fits precisely the situation which is now before me. Other than as noted in the preceding sections of this Opinion, the circumstances were exigent and the officers had the requisite probable cause. The stops and searches were valid. One further question in this area remains for decision. Defendants Haseltine and Wagoner also challenge the warrantless search at police headquarters of suitcases seized from the vehicle in which they had been arrested. They argue that once the suitcases had been seized and taken into police custody, no exigent circumstances existed which would justify the agents in opening and searching through the suitcases without first obtaining judicial approval. They thus seek to distinguish the invasion of their privacy effected by the seizure of these suitcases from that occasioned by the subsequent search of the suitcases’ contents. Although such a distinction has some appeal, I am mindful that in United States v. Valen, 479 F.2d 467 (3rd Cir. 1973), our Court of Appeals upheld the warrant-less search of suitcases which had been seized during the course of an inter-city shipment and which the police had probable cause to believe contained marijuana. In his concurring opinion Judge Adams stated: The Court here holds that under the “exigent circumstances” doctrine both the warrantless seizure of appellant’s suitcase and the warrantless search of its contents squares with the requirements of the Fourth Amendment. My view, as applied to the present case, would be that while sufficient probable cause existed for the warrantless seizure of appellant’s luggage, the subsequent warrantless search of the suitcase’s contents of Agent Clements violated the Fourth Amendment. It appears, however, that the Supreme Court, in Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), has rejected any such proffered distinction between warrantless searches and warrantless seizures. And, since Chambers is not, in my judgment, sufficiently distinguishable from the present case to permit either a different analysis or result here, I am impelled to concur" }, { "docid": "14297811", "title": "", "text": "an illegal sawed-off shotgun. Rather the seizure was proper if the officers had reasonable cause to believe that the article was contraband. Here the record reveals facts which gave the officers probable cause to believe that an illegal sawed-off shotgun was contained within the duffel bag. United States v. Story, 463 F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir. 1972). See also United States v. Sedillo, 496 F.2d 151, 153 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 419 U.S. 947, 95 S.Ct. 211, 42 L.Ed.2d 168 (1974). Thus we hold that the seizure of the shotgun here was not in violation of appellant Wilson’s fourth amendment rights. We place no significance on the fact that the padlock on the duffel bag had to be removed before' the shotgun could be fully examined. As noted above, the protruding barrel provided the police with good reason to believe that an illegal shotgun was contained in the bag which was lawfully within police custody. Cutting the padlock to free the gun was no more an unlawful intrusion than reaching inside an automobile to seize a gun visible from the outside. See United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir. 1972). The police in this ease were merely carrying out the seizure which the “plain view” doctrine authorized. In addition to the fact that the seizure of the sawed-off shotgun was valid under the “plain view” doctrine, recent Supreme Court decisions suggest that if sufficient probable cause existed to conduct a warrantless search of the duffel bag at the scene of the accident, it was not lost when the duffel bag was taken back to the police station. See Cardwell v. Lewis, 417 U.S. 583, 593—96, 94 S.Ct. 2464, 41 L.Ed.2d 325, (1974); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A current line of cases indicates that the special rationales developed by the Supreme Court in the automobile search area are equally applicable to other movable" }, { "docid": "14297812", "title": "", "text": "was lawfully within police custody. Cutting the padlock to free the gun was no more an unlawful intrusion than reaching inside an automobile to seize a gun visible from the outside. See United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir. 1972). The police in this ease were merely carrying out the seizure which the “plain view” doctrine authorized. In addition to the fact that the seizure of the sawed-off shotgun was valid under the “plain view” doctrine, recent Supreme Court decisions suggest that if sufficient probable cause existed to conduct a warrantless search of the duffel bag at the scene of the accident, it was not lost when the duffel bag was taken back to the police station. See Cardwell v. Lewis, 417 U.S. 583, 593—96, 94 S.Ct. 2464, 41 L.Ed.2d 325, (1974); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A current line of cases indicates that the special rationales developed by the Supreme Court in the automobile search area are equally applicable to other movable items such as the duffel bag involved here. See United States v. Buckhanon, 505 F.2d 1079, 1082 (8th Cir. 1974); United States v. Johnson, 467 F.2d 630, 639 (2d Cir. 1972), cert. denied, 413 U.S. 920, 93 S.Ct. 3069, 37 L.Ed.2d 1042 (1973); United States v. Mehciz, 437 F.2d 145, 147 (9th Cir.), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971). See generally, Note, Mobility Reconsidered: Extending the Carroll Doctrine to Movable Items, 58 Iowa L.Rev. 1134 (1973). The search of Wilson’s duffel bag was based upon overwhelming probable cause lawfully acquired at the scene of the accident. This probable cause to search was not forfeited through the passage of time or by the mere fact that the police chose to wait to open the bag and remoye the sawed-off shotgun in plain view until they had returned to the police station. This search and seizure was no less reasonable an intrusion than was recently held valid by the Supreme Court in Cardwell v. Lewis, supra, 417 U.S. at 593—96, 94" }, { "docid": "9420201", "title": "", "text": "case, a central element in the analysis of reasonableness. [Citations].” 392 U.S. at 18 n. 15, 88 S.Ct. 1878, 20 L.Ed.2d 904 (1968). Undertaking to draw fine distinctions between “searches” and “inventories” and “reasonable measures taken to protect property in plain sight” serves, in this case, only to divert attention from the critical inquiry which, under Fourth Amendment principles, should be conducted. See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84, 94 Cal.Rptr. 412 (1971). I would affirm. . Our court has not ignored these decisions in the past. See Barrentine v. United States, 434 F.2d 636 (9th Cir. 1970). . Cases such as Cooper, supra, and Gar-roll, supra, in which some police conduct was held constitutionally permissible are not inconsistent with this result. They merely reflect the delicate balancing that is required. See Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930, 940 (1967). . The same limited distinction differentiates this case from our prior decision in Barrentine, supra. The state does not contend that the search of Mitchell’s car is justifiable as a search incident to arrest — such an argument would be readily dismissed upon the authority of Preston. Nor does the state argue that there was either probable cause to believe that Mitchell’s car contained contraband or evidence of crime or that consent to the search had been given. Neither contention could be supported by the record. See Barrentine, supra. In this connection I note the majority’s reference to Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and to Heffley v. Hocker, 420 F.2d 881 (9th Cir. 1969), vacated, sub nom. Hocker v. Heffley, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780, reversed on remand 429 F.2d 1321 (9th Cir. 1970). Those cases are wholly inapposite here. They sanction searches of impounded vehicles only where, at the time a vehicle is seized, there is probable cause to search it for contraband or evidence of crime. There is" }, { "docid": "17654054", "title": "", "text": "police sooner than they had anticipated. See Cardwell v. Lewis, 417 U.S. 583, 595-96, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325 . (1974) (“Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.”) (citation omitted); Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970) (“[T]he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable.”). The exact level of exigency is unclear here because the police did call the magistrate for advice after detaining Foskey and his two companions and before searching the car. The better procedure would have been to seek a warrant from the magistrate at that time-a warrant which the magistrate testified at a pretrial hearing he would have issued. But the failure to do so does not render the search impermissible under the Fourth Amendment’s standards for automobile searches. . In a case to be heard en banc next term, this court will be faced with a similar question-whether there is a reasonable expectation of privacy in an ordinary paper bag carried in a car. United States v. Ross, No. 79-1624, rehearing en banc granted (D.C. Cir. June 26, 1980). Our decision here does not depend upon the resolution of the issue raised in that case. . Some courts have ruled that questions designed merely to obtain background information for booking purposes are outside the scope of Miranda. See United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976); United States v. Menichino, 497 F.2d 935, 939-41 (5th Cir. 1974); United States v. La Monica, 472 F.2d 580 (9th Cir. 1972). An earlier case from this circuit, however," }, { "docid": "2089053", "title": "", "text": "investigatory efforts provided an important part of the Government’s case against Appellants for the Fern Park Post Office burglary. The only question then, is the legality of the searches. Appellants do not contend that Agent Bolyard lacked probable cause for stopping or arresting Chapman. They contend, however, that the searches of the car without a warrant were illegal. The validity of the first search, which occurred on the highway, like any search without a warrant is subject to the existence of probable cause plus exigent circumstances. Where, as here, an automobile has been stopped in the middle of a busy public thoroughfare and an unchallengable arrest is made on the basis of an outstanding warrant, the immediate exploratory inspection of the automobile reveals hand weapons prudent officers know to be used in burglaries, and the officer has particularized, well-grounded information that the car was employed in the Alabama burglary and its contents include both the fruits and the instrumentalities of crime, the authorities allow us to hold that there was both probable cause and the requisite exigent circumstances. See, Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 and United States v. Ragsdale, 5 Cir., 470 F.2d 24 [1972]. Our conclusion is bolstered by the fact, which was known to the arresting officer, that the car did not belong to the driver and might be subject to an attempted or actual removal by its owner appellant Scott. Chambers further compels us to hold that if the intrusion of privacy on the highway was justified then the later inventory at the station house is unchallengable, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 429. The Court’s rationale was that since the officers could, under the circum stances, immobilize the car and prevent anyone from using it (i. e., seize the car) until a warrant was obtained, as long as probable cause was clearly present there was little practical difference between an immediate search and one conducted after awaiting a warrant. Given this assumption the Court held that removal of the vehicle to the station" }, { "docid": "16447081", "title": "", "text": "suspicion that criminal activity is afoot. Id. at 30, 88 S.Ct. at 1884. In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, together with rational inferences from those facts, reasonably warrant that intrusion. Id. at 21, 88 S.Ct. at 1879. The Riverside officers observed individuals in a vehicle with out-of-state license plates looking at a bank through binoculars for about ten minutes. These facts are sufficient to justify the stop. After making a permissible investigatory stop, it is well-established that the officers could then make a warrantless search of the automobile if exigent circumstances existed to prevent them from obtaining a search warrant: “[A] search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). In the instant case, appellant Werner advised the police officers of the gun’s location in the glove compartment. That fact, together with the circumstances of the initial stop, is sufficient to cause the officer reasonably to believe that the automobile contained an illegally concealed weapon. Once having found the concealed weapons, the officer clearly had probable cause to arrest. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Portillo-Reyes, 529 F.2d 844, 848 (9th Cir. 1975), cert. denied, 429 U.S. 899, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976). The District Court, here, however, denied Werner’s motion to suppress on the grounds that it was not accompanied by affidavits within the meaning of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). That case held that where a defendant makes a substantial preliminary showing through affidavits that a false statement was knowingly, intentionally or recklessly included in the" }, { "docid": "12108837", "title": "", "text": "N.J.Super. 115, 309 A.2d 3, 5 (1973); Wise v. Murphy, 275 A.2d 205, 216 (D.C.Ct. App.1971). . Of course, Watson involved a warrantless arrest and a search incident thereto. In United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950), the Supreme Court stated that the question “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” This statement was repeated in Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967), where a car had been searched without a warrant a week after its impoundment. However, in overruling Rabinowitz, the Supreme Court pointed out that, in Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), it had said that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969). Then, in Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), the Court — while stating that “[ojnly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search” — looked at “practical consequences,” id. at 52, 90 S.Ct. at 1981, and upheld a thorough search of an automobile performed at a police station some time after the vehicle had been stopped on the highway. The Court explained, in South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976) (footnote omitted), that such a search of automobiles, even in the absence of exigent circumstance, was permissible under “less rigorous warrant requirements .. . because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Court cited Cooper v. California, supra, in upholding a search of the defendant’s clothing which had taken place on the morning after" }, { "docid": "13830884", "title": "", "text": "in a shopping center: he did not detach a part of the truck in a rest area. Based on an objective view of the facts as found by the magistrate, we conclude that Hall did not abandon the Ryder truck and possessed a reasonable expectation of privacy in the truck. Appellant contends that the district court erred in concluding that the officers did not violate the fourth amendment in conducting a warrantless search of the truck. Hall concedes that the officers had probable cause to believe that the truck contained marijuana. Appellant’s Brief at 23. Appellant contends that the officers, nevertheless, should have obtained a warrant prior to searching the truck. Government agents may search an automobile without a warrant if they can establish probable cause and exigent circumstances. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163 n. 9, 72 L.Ed.2d 572 (1982), the Supreme Court noted that “if police officers have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct an immediate search of the contents of that vehicle.” Exigency must be determined at the time of the seizure of an automobile, not at the time of its search. United States v. McBee, 659 F.2d 1302, 1305 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982); United States v. Mitchell, 538 F.2d 1230, 1232 (5th Cir. 1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977). At the time law enforcement officials seized Hall’s truck, there may still have been a danger that the vehicle or its contents would be moved before the officers obtained a valid search warrant. See United States v. Chadwick, 433 U.S. 1, 13 n. 7, 97 S.Ct. 2476, 2484 n. 7, 53 L.Ed.2d 538 (1977); Chambers v. Maroney, 399 U.S. at 52, 90 S.Ct. at 1981 — 1982; United States v." }, { "docid": "14297820", "title": "", "text": "readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight. . In deciding whether an inventory search was necessary and reasonable, we quoted with approval from Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, at 417, 484 P.2d 84, at 89: This contention is rebutted by recognition of the vehicle owner’s countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner’s property against the owner’s rights under the Fourth Amendment, we observe that items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property. United States v. Lawson, 487 F.2d 468, 476 (8th Cir. 1973)." }, { "docid": "4125927", "title": "", "text": "of the search, the Asheville police had in their possession a search warrant issued by a state superior court judge under the authority of North Carolina General Statutes § 14-288.11, which authorized the search of all vehicles entering or approaching Asheville for weapons. We need not consider appellants’ arguments that the affidavit on which the warrant was obtained was insufficient, that the warrant unlawfully authorized general searches, or that Dobbins’ automobile was not “entering or approaching the City of Asheville” as the warrant specified. Assuming the warrant invalid, the search was amply supportable on a theory of probable cause which itself was sufficient to make this automobile search an entirely reasonable one. Boone v. Cox, 433 F.2d 343 (4th Cir. 1970). Because of its mobility, a search of an automobile without a warrant is reasonable if it is based on probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). If there is probable cause to search the automobile at the place where it was stopped, it matters not that the search is conducted sometime later after the automobile has been transported to the police station. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The mayor’s proclamation declaring a state of emergency made appellants’ possession of a shotgun and ammunition a misdemeanor. At the time of Chalk’s arrest, the butt of the shotgun was in the plain view of the arresting officers and thus subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). We think the discovery of the stock of the shotgun entitled the arresting officers to conclude that the automobile probably also contained the shotgun barrel and ammunition. When the second search was conducted at the police station, the searching officers knew that the car had already been found to contain a shotgun, a shotgun shell, and a roll of dynamite fuse. They also knew Dobbins had concealed shotgun shells in each of his socks." } ]

[ { "docid": "22861746", "title": "", "text": "judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984), Cancellier v. Federated Department Stores, 672 F.2d 1312, 1319 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982). In such circumstances, the remedial purpose of the statute would be thwarted and plaintiff would suffer irreparable harm if front pay were not available as an alternate remedy to reinstatement. Whittlesey, 742 F.2d at 728. Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible. See Goldstein v. Manhattan Industries, Inc., 758 F.2d at 1448; Davis v. Combustion Engineering, 742 F.2d 916, 923 (6th Cir.1984); Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1100-01 (8th Cir.1982). See also Crawford and McRae, Front Pay in Lieu of Reinstatement as a Remedy in ADEA Litigation, 9 Empl.Rel.L.J. 705, 708 & n. 11 (1984). Of course the amount of damages available as front pay is a jury question. We agree with Judge Broderick, the trial judge in this case, that an award for future lost earnings is no more speculative than awards for lost earning capability routinely made in personal injury and other types of cases. The plaintiff’s duty to mitigate damages should serve as an effective control on unjustified damage awards. See Whittlesey v. Union Carbide Corp., 742 F.2d at 728. In this case, counsel for Sinclair argued strenuously to the jury that Maxfield had not taken reasonable steps to mitigate and therefore neither front pay nor backpay should be awarded. Counsel stressed that because of the amount of Maxfield’s income from Social Security and other sources, it would have been unrealistic for him to attempt to find alternate employment. The jury rejected the argument that Maxfield failed to mitigate, and we find no basis for setting aside its decision. Alternately, Sinclair argues that Maxfield waived his right to request front pay by failing to request reinstatement. Sinclair relies on our decision in Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980)," } ]

[ { "docid": "22137289", "title": "", "text": "award can be enforced as an alternative to, or can arise with respect to, the equitable remedy of seniority integration. The award is not cumulative, nor does it address a separate remedial concern. Rather, it serves as a substitute for the performance of an equitable remedy that cannot otherwise be enforced. See Van Waters, 913 F.2d at 741 (“if violated, [the seniority rights provided under the collective bargaining agreement] could be remedied by an award of damages rather than specific performance.”). We find support for the proposition that monetary awards are a viable alternative to the equitable remedy of seniority integration in wrongful discharge cases where we have enforced awards of monetary damages in lieu of reinstatement. Much like reinstatement, seniority integration is a “make whole” remedy, the purpose of which is to restore the employee to the economic status quo that would exist but for the employer’s conduct. See Franks v. Bowman Transp. Co., 424 U.S. 747, 766, 96 S.Ct. 1251, 1265, 47 L.Ed.2d 444 (1976). Although we have recognized that reinstatement is the preferred remedy to address cases of wrongful discharge, we have enforced monetary awards as a viable alternative where reinstatement is impractical. See Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985) (front pay is an appropriate alternative to reinstatement where the relationship between the parties may be so damaged by animosity that reinstatement is impracticable and the remedial purposes of the statute would be frustrated if front pay were not available as an alternative remedy); Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.1984) (same); see also Ellis v. Ringgold School District, 832 F.2d 27 (3d Cir.1987) (reinstatement may be denied when animosity between the parties makes such remedy impracticable). Cf. Squires v. Bonser, 54 F.3d 168 (3d Cir.1995) (special circumstances indicating that tensions between the parties exceed those which normally accompany reinstatement or indicating “irreparable” animosity among the parties involved justifies denial of reinstatement). Similar to the conditions that can result from the enforcement of reinstatement, disruption to the work environment, irreparable damage to work relationships, and hostility and animosity are all" }, { "docid": "5605554", "title": "", "text": "v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977) (“Prospective reinstatement is an equitable remedy. The requirements of the law of equitable remedies clearly applies [sic] to § 1983.), affd in part, rev’d in part on other grounds, 590 F.2d 470 (3d Cir.1978). Nevertheless, reinstatement is not available in all cases. “[A] court may deny reinstatement ‘when, for example, animosity between the parties makes such a remedy impracticable.’ ” Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993) (quoting Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987)). If plaintiff’s speech has caused such animosity and disruption that' reinstatement is no longer a practical remedy, then plaintiff has not “suffered [an] actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam). If such is the case, we would lack jurisdiction over these claims because there would be no “actual case[ ] or controversy].” Id. “The requirement of ‘actual injury redress-able by the court’.... tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conductive to a realistic appreciation of the consequences of judi cial action.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)). Furthermore, the fact “[t]hat the dispute between the parties was very much alive when suit was filed ... cannot substitute for the actual case or controversy that an exercise of this [c]ourt’s jurisdiction requires.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 600, 98 L.Ed.2d 686 (1988). We turn to the issue of whether reinstatement is an available remedy because the resolution of this issue against plaintiff would moot plaintiffs claim to the extent that plaintiff seeks reinstatement." }, { "docid": "19729891", "title": "", "text": "third party, to instate Kraemer. Although the Third Circuit has not specifically addressed the issue of “bumping” innocent employees to reinstate or instate the successful plaintiff in discrimination cases, the courts in this circuit have followed the principle that reinstatement is not feasible if the exact position or no comparable position is available. See Starceski 54 F.3d at 1103 (affirming district court’s denial of plaintiff’s motion for reinstatement reasoning that reinstatement was not feasible due to the lack of available positions and given the animosity between the parties); Zampino v. Supermarkets Gen. Corp., 821 F.Supp. 1067 (E.D.Pa.1993) (recognizing that although reinstatement was the preferred remedy in discrimination cases, reinstatement is not feasible where there are no comparable positions available). Neither the Starceski court nor the Zampino court required the defendant to bump an innocent employee to reinstate the plaintiff. Other circuit courts agree that instatement is not an appropriate remedy if it requires bumping or displacing an innocent employee in favor of the plaintiff who would have held the job but for illegal discrimination. See Spagnuolo v. Whirlpool Corp., 717 F.2d 114, 119-122 (4th Cir.1983) (although district court initially entered a judgment in accordance with the “rightful place” theory whereby the employee who suffered past discrimination will be given full seniority rights and permitted to obtain the next available vacancy by means of that seniority, district court erred in amending that judgement to require the defendant corporation to bump the innocent incumbent who held the position originally in dispute so that plaintiff could be reinstated); Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254 (5th Cir.1995) (district court did not abuse its discretion in denying reinstatement where there were no existing vacancies in school district and where reinstating plaintiff would require displacement of an existing employee); Deloach v. Delchamps, Inc., 897 F.2d 815, 822-23 (5th Cir.1990) (applying ADEA precedent to interpret the Louisiana Age Discrimination in Employment Act, court upheld district court’s order that reinstatement was not feasible because plaintiff had been replaced and reinstatement would disrupt the employment of others); Shore v. Federal Express Corp., 777" }, { "docid": "23352714", "title": "", "text": "position with SEPTA. Title VII provides that the court may order “reinstatement ... with or without back pay ..., or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g). Although reinstatement is the preferred remedy to avoid future lost earnings, a court may deny reinstatement “when, for example, animosity between the parties makes such a remedy impracticable.” Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The trial judge concluded that the “demonstrated irreparable conflict” between Robinson and SEPTA supervisors made reinstatement impracticable. He cited SEPTA’s complaints about Robinson and Robinson’s own testimony referring to SEPTA managers as South African dogs. Given hostilities such as those, the trial judge was well within his discretion in refusing to reinstate Robinson. Conclusion For the above reasons, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. On remand the district court should determine under the facts of the case whether prejudgment interest should be granted and should reinstate plaintiffs award it had reduced for income tax and equitable reasons. . In a retaliatory discharge claim under Title VII, a successful plaintiff must show that (1) he was engaged in a protected activity; (2) he was discharged after or contemporaneously with that activity; and (3) there was a causal link between the protected activity and the discharge. Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir.), cert. denied, — U.S. —, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990). . Although the record contains several examples of Robinson’s harassment, these can be illustrated by one incident in early April of 1984. Robinson missed a day of work due to illness. When he returned to work the next day, Robinson" }, { "docid": "5605553", "title": "", "text": "on the basis of undisputed evidence, we conclude, as did the district court, that the interests of the Hose Company outweigh the limited interests of plaintiff and the public in plaintiffs speech; Accordingly, plaintiffs speech is not protected by the First Amendment. 2. Overbreadth We have concluded that plaintiffs speech was not protected by the First Amendment. Accordingly, plaintiff is not in a position to argue that the provision in the Hose Company constitution under which he was expelled is unconstitutionally overbroad as applied to his speech. Nevertheless, plaintiff seeks to challenge that provision as overbroad on its face. A facial overbreadth challenge allows a plaintiff “to benefit from the [provision’s] unlawful application to someone else.” Board of Trustees v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989). The remedies sought by plaintiff for this alleged constitutional violation are reinstatement and a declaratory judgment that the provision is overbroad. Plaintiff seeks no monetary relief. See supra, note 1. Reinstatement is an equitable remedy under 42 U.S.C. § 1983. See Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977) (“Prospective reinstatement is an equitable remedy. The requirements of the law of equitable remedies clearly applies [sic] to § 1983.), affd in part, rev’d in part on other grounds, 590 F.2d 470 (3d Cir.1978). Nevertheless, reinstatement is not available in all cases. “[A] court may deny reinstatement ‘when, for example, animosity between the parties makes such a remedy impracticable.’ ” Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993) (quoting Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987)). If plaintiff’s speech has caused such animosity and disruption that' reinstatement is no longer a practical remedy, then plaintiff has not “suffered [an] actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam). If such is the case, we would lack jurisdiction over these claims because there would be no “actual case[ ] or controversy].” Id. “The" }, { "docid": "15310544", "title": "", "text": "exercise of discretion, we consider not only the reasons proffered by the district court for its determination, but also whether those reasons find support in the record. It is well settled that reinstatement is the preferred remedy to avoid future lost earnings. Maxfield, 766 F.2d at 796; see also James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir.1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 678 (7th Cir.1993); Roush v. KFC Nat’l Management Co., 10 F.3d 392, 398 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994); Brunnemann v. Terra Int'l Inc., 975 F.2d 175, 180 (5th Cir.1992); Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1438 (11th Cir.1991); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991), cert. denied, 502 U.S. 963, 112 S.Ct. 429, 116 L.Ed.2d 449 (1991); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346 (9th Cir.1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988). Only when the evidence supports a judge’s decision that reinstatement is not feasible, may he award front pay in lieu of reinstatement. Reinstatement may not be deemed feasible (1) where the relationship between the parties has been so damaged by animosity as to make reinstatement impracticable, Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993); Witco Chem. Corp., 829 F.2d at 373-74; Maxfield, 766 F.2d at 796; or (2) where no comparable position is available to which the claimant can be reinstated. Witco Chem. Corp., 829 F.2d at 374; Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). A. I believe that the record simply does not support the district court’s finding that substantial animosity had developed between Feldman and PHA — as opposed to the animosity that had evolved between Feldman, on the one hand, and Paone and Saidel on the other. Nor has the majority identified any such evidence. Speculation that Saidel might, in the future, be re-elected to the position of city comptroller and, in that capacity, be permitted to appoint persons to the Board" }, { "docid": "19916021", "title": "", "text": "she cannot be placed in the position she was unlawfully denied. See Maxfield, 766 F.2d at 795-97. Front pay is an alternative to the traditional equitable remedy of reinstatement, Squires v. Bonser, 54 F.3d 168, 176 (3d Cir.1995), which would be inappropriate where there is a likelihood of continuing disharmony between the parties or unavailable because no comparable position exists. See Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir.1987); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 890 (3d Cir.1984). Because the award of front pay is discretionary, we review the District Court’s decision for abuse of discretion and will reverse only if we are left with a definite and firm conviction that a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir.1994). The jury recommended a front-pay award of $395,795 to cover the difference in Donlin’s salary and pension earnings for 25 years, adjusted to account for the probability of death and discounted to present value. The District Court modified that award, limiting front pay damages to 10 years, which totaled $101,800. Despite this reduction, Philips asserts that the District Court’s award of front pay was erroneous in two respects. First, Philips claims that Donlin should not be entitled to front pay because she mitigated her damages by reestablishing herself in the workforce before trial. Philips cites Ford Motor for the proposition that damages are inappropriate where they “would catapult [the plaintiff] into a better position than they would have enjoyed in the absence of discrimination.” 458 U.S. at 234, 102 S.Ct. 3057. As we have explained, however, the District Court found that Donlin was not in the same position she would have been in had Philips hired her as a full-time employee. Instead, the District Court concluded that her salary would have been higher had she been hired and remained at Philips. When a defendant’s front pay objection is predicated upon the same objections regarding mitigation of damages which we have rejected with regard to back pay, we" }, { "docid": "22137290", "title": "", "text": "preferred remedy to address cases of wrongful discharge, we have enforced monetary awards as a viable alternative where reinstatement is impractical. See Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985) (front pay is an appropriate alternative to reinstatement where the relationship between the parties may be so damaged by animosity that reinstatement is impracticable and the remedial purposes of the statute would be frustrated if front pay were not available as an alternative remedy); Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.1984) (same); see also Ellis v. Ringgold School District, 832 F.2d 27 (3d Cir.1987) (reinstatement may be denied when animosity between the parties makes such remedy impracticable). Cf. Squires v. Bonser, 54 F.3d 168 (3d Cir.1995) (special circumstances indicating that tensions between the parties exceed those which normally accompany reinstatement or indicating “irreparable” animosity among the parties involved justifies denial of reinstatement). Similar to the conditions that can result from the enforcement of reinstatement, disruption to the work environment, irreparable damage to work relationships, and hostility and animosity are all very probable conditions that can result from the enforcement of seniority integration. Considering the similarity in purpose between the two remedies, the rationale underlying the enforcement of an alternative remedy to fulfill their remedial purposes, and the similarity in the impracticality of enforcing the remedies under particular circumstances, we are certain that a money damage award is an appropriate alternative to seniority integration. Moreover, we are convinced that the particular circumstances of this ease might make the enforcement of the equitable remedy of seniority integration impractical such that an alternative money damage award would be appropriate. The seniority integration sought by the LPP Claimants and the Group of 31 could potentially result in the displacement of many Continental pilots. Such displacement has the potential to create an environment rife with hostility and low employee morale, not to mention a detrimental effect on employer-employee relations. The circumstances indicate that seniority integration would not be a feasible remedy and that an alternative remedy of monetary damages would be appropriate. Therefore, we conclude that the right to seniority" }, { "docid": "19729887", "title": "", "text": "796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), appeal after remand, 877 F.2d 54 (3d Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is.no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Maxfield, 766 F.2d at 796. The exact position which the successful .plaintiff was unlawfully denied or removed, from need not be available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F.Supp. 397, 400 (E.D.Pa.1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed, to reinstate plaintiff in the event of an adverse verdict to a comparable position for which plaintiff is qualified and plaintiff stated he would accept, reinstatement to comparable position), aff'd, 782 F.2d 1029 (3d Cir.1986). If instatement is not feasible, the court should award the alternative remedy of front pay. Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F.Supp. 962, 966 (E.D.Pa. 1985). In determining whether to grant in-statement, the court should take into consideration the ADEA’s purpose to make victims of discrimination whole by restoring them to the economic position they would have occupied but for the unlawful conduct of their employer. See Starceski 54 F.3d at 1103; Maxfield, 766 F.2d at 796. The decision to grant reinstatement or its alternative, front pay, is within the discretion of the district court. See Maxfield, 766 F.2d at 796 (“Since reinstatement is an equitable remedy it is the district court that should decide whether reinstatement is feasible.”). Kraemer argues that instatement is the proper remedy in this case and that there are several ways F & M can instate her. First, Kraemer argues that she can fill the tenure-track" }, { "docid": "23621810", "title": "", "text": "Both parties also object to the Magistrate Judge’s award of partial attorney’s fees and costs to Watson. SEPTA argues that, because the jury returned a verdict in its favor, Watson was not the “prevailing party” under the attorney’s fee provision of Title VII. 42 U.S.C. § 2000e-5(k) (court may award reasonable attorney’s fees and costs to “the prevailing party” under Title VII). Watson argues that her reinstatement to the mail run position was causally related to the litigation and constituted meaningful relief. SEPTA contends, in turn, that reinstatement to the mail run position was not the relief Watson sought in this suit. Rather, SEPTA maintains that the relief Watson sought was reinstatement to her “quality control” job. We review the amount of the fee award for abuse of discretion. Whether the Magistrate Judge applied the proper standard is reviewed de novo, and we review the Magistrate Judge’s factual findings for clear error. See Rode v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir. 1990). In order to qualify as a “prevailing party,” Watson was required to show that she achieved relief and that there was a causal connection between the litigation and the relief. See Wheeler by Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir.1991). (“[A]s long as a plaintiff achieves some of the benefit sought in a lawsuit, even though the plaintiff does not ultimately succeed in securing a favorable judgment, the plaintiff can be considered the prevailing party for purposes of a fee award.”); see also Clark v. Township of Falls, 890 F.2d 625, 627 (3d Cir.1989) (“[I]f plaintiffs could establish that their suit was the catalyst for the changes, they were entitled to prevailing party status despite the fact that the district court had ruled against them.”). The Magistrate Judge’s conclusion that Watson “prevailed” based on her reinstatement to the mail run position is supported by ample circumstantial evidence. Watson was not returned to her job until after the suit was filed, after SEPTA’s motion for summary judgment was denied, and after the Magistrate Judge urged SEPTA to reinstate her. Indeed, SEPTA admitted that" }, { "docid": "19729890", "title": "", "text": "M. In support of this contention, F & M argues, first, that it should not be required to “bump” or fire Cooper, an innocent third party, to instate Kraemer. Second, F & M argues that it should not be required to create a fifth tenure track position in the Department of Religious Studies which it would be required to do by instating Kraemer and continuing to offer courses on Asian Studies and Asian religions. Lastly, F & M acknowledges that Professor Hopkins is retiring at the end of the 1995-1996 academic year thereby making a tenure track position available in the Department of Religious Studies. However, F & M argues that since Professor Hopkins taught courses on Asian Studies.and Asian religions, his position is not comparable to the Biblical Studies position sought by Kraemer. Thus, F & M argues that instatement is not feasible and that the alternative remedy of front pay is appropriate. 1. Bumping Cooper To Instate Kraemer Is Not Appropriate F & M should not be required to bump Cooper, an innocent third party, to instate Kraemer. Although the Third Circuit has not specifically addressed the issue of “bumping” innocent employees to reinstate or instate the successful plaintiff in discrimination cases, the courts in this circuit have followed the principle that reinstatement is not feasible if the exact position or no comparable position is available. See Starceski 54 F.3d at 1103 (affirming district court’s denial of plaintiff’s motion for reinstatement reasoning that reinstatement was not feasible due to the lack of available positions and given the animosity between the parties); Zampino v. Supermarkets Gen. Corp., 821 F.Supp. 1067 (E.D.Pa.1993) (recognizing that although reinstatement was the preferred remedy in discrimination cases, reinstatement is not feasible where there are no comparable positions available). Neither the Starceski court nor the Zampino court required the defendant to bump an innocent employee to reinstate the plaintiff. Other circuit courts agree that instatement is not an appropriate remedy if it requires bumping or displacing an innocent employee in favor of the plaintiff who would have held the job but for illegal discrimination. See" }, { "docid": "15310537", "title": "", "text": "retaliatory firing of Feldman; that they fired him in order to conceal their own mismanagement at PHA; and that this conduct sank to the levels of conduct that justify imposition of punitive damages under both federal and Pennsylvania law. We conclude that both Paone and Saidel must pay the modest punitive damages the jury assessed against them. We have considered defendants’ remaining arguments and find them to be similarly without merit. CONCLUSION The judgment of the district court is affirmed. . See, e.g., Robinson, 982 F.2d at 899 (3d Cir.1993) (affirming district court's denial of reinstatement where evidence supported finding of lingering hostilities between plaintiff and his supervisors); Versarge v. Township of Clinton, 984 F.2d 1359, 1369 (3d Cir.1993) (holding reinstatement inappropriate \"because of the great animosity between plaintiff and the other volunteer firefighters”); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir.1993) (upholding district court’s denial of plaintiffs’ request for reinstatement to former teaching positions on grounds that (1) school district and school building were very small; (2) record was filled with testimony regarding tense and hostile atmosphere at school between plaintiffs, individual defendants, and other teachers; and (3) friction that precipitated lawsuit would dog the school districts if plaintiffs were returned to their positions); Tennes v. Commonwealth of Mass. Dep’t of Revenue, 944 F.2d 372, 381 (7th Cir.1991) (affirming denial of reinstatement where there was no reason to believe that parties would enjoy a productive and amicable working relationship); Spulak v. K Mart Corp., 894 F.2d 1150, 1157 (10th Cir.1990) (affirming award of front pay in lieu of reinstatement where record supported Spulak’s assertion that K Mart's investigation of Spulak's alleged illegal activities “left his employees with the impression that he was guilty of wrongdoing, rendering him unable to function amicably and productively in his former supervisory capacity',” and where the level of animosity between Spulak and K Mart only increased as a result of the litigation). GARTH, Circuit Judge, concurring in part and dissenting in part: While I agree with the majority’s conclusion that Feldman’s actions as Director of Internal Audit at the Philadelphia" }, { "docid": "19916020", "title": "", "text": "Donlin received greater compensation than she would have received had she been hired by Philips because she worked overtime hours in her new job and received a greater annual pay raise than the raises given by Philips. Id. The District Court’s undisputed factual findings at the first trial do not comport with this conclusion, however. Instead, they indicate that Donlin earned less in her new job, even taking into account her overtime compensation and pay raise. These facts supported a finding that the two jobs were not substantially equivalent. If the evidence on remand supports a similar finding, the District Court should again conclude as a matter of law that Donlin can only be made whole — as Title VII demands — if awarded sufficient back pay to make up the difference. 2. Front Pay Though back pay makes a plaintiff whole from the time of discrimination until trial, a plaintiffs injury may continue thereafter. Accordingly, courts may award front pay where a victim of employment discrimination will experience a loss of future earnings because she cannot be placed in the position she was unlawfully denied. See Maxfield, 766 F.2d at 795-97. Front pay is an alternative to the traditional equitable remedy of reinstatement, Squires v. Bonser, 54 F.3d 168, 176 (3d Cir.1995), which would be inappropriate where there is a likelihood of continuing disharmony between the parties or unavailable because no comparable position exists. See Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir.1987); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 890 (3d Cir.1984). Because the award of front pay is discretionary, we review the District Court’s decision for abuse of discretion and will reverse only if we are left with a definite and firm conviction that a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir.1994). The jury recommended a front-pay award of $395,795 to cover the difference in Donlin’s salary and pension earnings for 25 years, adjusted to account for the probability of death and discounted to" }, { "docid": "9354830", "title": "", "text": "the means of relief available); Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (stating that “[t]he ‘make whole’ purpose of Title VII is made evident by the legislative history.”); Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153, 1160 (8th Cir.1998) (acknowledging the court’s obligation “to fulfill the make-whole purposes of Title VII”). Among the myriad of remedies available to individuals who prevail on their claims of employment discrimination are two alternative types of equitable prospective relief: reinstatement and front pay. Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir.1997). These equitable remedies may be awarded to compensate successful plaintiffs for lost future earnings. Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 832-33 (3d Cir.1994). The purpose of and method for calculating these equitable remedies have been characterized in largely the same manner whether relief is sought under Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (ADEA), or the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (ADA). Lussier v. Runyon, 50 F.3d 1103, 1107-08 (1st Cir.1995). The choice of which prospective equitable remedy, if either, should be awarded in a given case is committed to the sound discretion of the trial court. E.E.O.C. v. HBE Corp., 135 F.3d 543, 555 (8th Cir.1998); Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1458 (10th Cir.1997); Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1234 (6th Cir.1996); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir.1993); Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir.1990). In Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003, 1008-15 (N.D.Iowa 1998), aff'd, 214 F.3d 999 (8th Cir.2000), this court provided a comprehensive examination of reinstatement and front pay as remedies for prospective equitable relief available under Title VII, as well as examined the factors considered in ordering reinstatement and in awarding front pay. Id. The court, therefore, will not expound upon those remedies and factors extensively here. Rather, the court will address the remedies and apply the factors that it enumerated in Ogden" }, { "docid": "15310545", "title": "", "text": "that reinstatement is not feasible, may he award front pay in lieu of reinstatement. Reinstatement may not be deemed feasible (1) where the relationship between the parties has been so damaged by animosity as to make reinstatement impracticable, Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993); Witco Chem. Corp., 829 F.2d at 373-74; Maxfield, 766 F.2d at 796; or (2) where no comparable position is available to which the claimant can be reinstated. Witco Chem. Corp., 829 F.2d at 374; Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). A. I believe that the record simply does not support the district court’s finding that substantial animosity had developed between Feldman and PHA — as opposed to the animosity that had evolved between Feldman, on the one hand, and Paone and Saidel on the other. Nor has the majority identified any such evidence. Speculation that Saidel might, in the future, be re-elected to the position of city comptroller and, in that capacity, be permitted to appoint persons to the Board of Commissioners, which in turn governs PHA, simply is too remote to support an award of front pay in lieu of reinstatement and is no substitute for evidence. Accordingly, in my opinion, the district court’s finding of fact that Feldman could not enjoy a productive working relationship with PHA were he to be reinstated, is clearly erroneous. Unlike almost all eases in which reinstatement is denied, here there is no record evidence of lingering hostility between Feldman and any individual still working at PHA. While some PHA employees testified at trial, their testimony did not reveal any animus towards Feldman. See Bingman v. Nothin & Co., 937 F.2d 553, 558 (10th Cir.1991) (affirming district court’s finding that work place would not be unduly hostile where “all persons involved in plaintiffs termination testified, and none showed animosity toward him because of [his] lawsuit”). Most importantly, Paone and Saidel no longer work for the Philadelphia Housing Authority. See, e.g., Rodgers, 12 F.3d at 678 (affirming district court’s award of reinstatement where supervisor, whose racial comments had been" }, { "docid": "22251768", "title": "", "text": "no unusual circumstances in favor of a discretionary denial of pre-judgment interest, we will reverse the district court’s denial of Starceski’s motion for pre-judgment interest and remand for a quantification of the pre-judgment interest due him. See Green v. USX Corp., 843 F.2d 1511, 1530 & n. 16 (3d Cir.1988). B. Reinstatement Starceski also contends that the district court erred in denying his request for reinstatement. We have held that the decision to grant reinstatement or its alternative, front pay, is within the sound discretion of the district court. Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir.1985) (“Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible.”), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In determining whether to grant either reinstatement or front pay, we have suggested that district courts should take into consideration the ADEA’s purpose to make aggrieved plaintiffs whole “by restoring them to the position they would have been in had the discrimination never occurred.” Id. Although reinstatement “is the preferred remedy to avoid future lost earnings” because it is consistent with the ADEA’s make-whole philosophy, we have concluded that reinstatement is not feasible in cases where there “may be no position available at the time of judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable.” Id. Here, we initially note that Starceski failed to object when the trial judge instructed the jury on front pay, even though he intended to make a motion for reinstatement. Starceski is not entitled to both reinstatement and front pay. In any event, the district court found that reinstatement was not a viable option due to the lack of available positions and given the animosity between the parties. We cannot say that finding is clearly erroneous. Moreover, on this record, we see no abuse of discretion in the district court’s decision to deny Starceski the remedy of reinstatement. “The district court was in a much better position [than us] to determine whether or not reinstatement was feasible" }, { "docid": "17558343", "title": "", "text": "see Selgas v. American Airlines, Inc., 104 F.3d 9, 13 (1st Cir.1997), and, given its ability to directly observe the litigants, it is in a far better position than an appeals court to judge the quality of their relationship, an important factor in determining the viability of reinstatement. See Wildman, 771 F.2d at 615. On appeal, an order denying reinstatement will be disturbed only when the reviewing court is left “with a definite and firm conviction that a mistake has been made.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir.1989). The district court based its decision on the considerable antipathy Airborne’s top management held for Kelley, antipathy that the district court found went beyond the “animosity engendered by th[e] litigation.” As the district court explained, Brazier disliked Kelley prior to the litigation; the other management staff had effectively vilified Kelley, which completely undermined his value as a manager; and Kelley’s supervisor would be the man who had signed his termination letter—a termination the court described as “deliberately manufactured” without restraint. Further, the district court did not trust Airborne’s reinstatement offer or their intentions. The court described the motion asking the court to reinstate Kelley as “just another strategic move” and found that the proposed “at-large” position was indefinite and “make-work.” The district court thus expressed deep concerns in its determination that Kelley’s reinstatement to Airborne was impracticable. Given these stated reasons, we find the re fusal to order reinstatement well within the court’s discretion and amply supported by the record. See Maxfield v. Sinclair Intern., 766 F.2d 788, 795 (3d Cir.1985) (noting that reinstatement may be inappropriate if animosity has damaged the relationship between the parties); Cancellier v. Federated Dep’t Stores, 672 F.2d 1312 (9th Cir.1982) (similar). B. The Front Pay Instruction Airborne next contends that the district court incorrectly instructed the jury on how to calculate front pay damages. Within federal employment discrimination law, front pay is generally an equitable remedy awarded by the court, see Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir.1995), while, under ch. 151B, the jury awards front pay, see Handrahan," }, { "docid": "19729886", "title": "", "text": "of Religious Studies citing objections to the process by which' Cooper was selected and inappropriate considerations of age and sex by Professors Martin and Aronowicz. Professor Hopkins stated that Professor Martin selected Cooper because he did not “want to be the youngest person in the department” and Professor Aronowicz selected Cooper because she disagreed with Kraemer’s feminist-based methodology of religious history. Kraemer. filed this action against F & M alleging age discrimination in violation of the ADEA, sex discrimination in violation of Title VII of the CM Rights Act of 1964, 42 U.S.C. § 2000(e), as amended, and age and sex discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951-963 (1996). II. DISCUSSION A. INSTATEMENT OR FRONT PAY Although reinstatemenVinstatement (“instatement”) is the preferred remedy to avoid future lost earnings, the United States Court of Appeals for the Third Circuit has recognized that instatement may not be feasible in all cases. See Squires v. Bonser, 54 F.3d 168, 173 & n. 8 (3d Cir.1995); Maxfield v. Sinclair Int'l 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), appeal after remand, 877 F.2d 54 (3d Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is.no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Maxfield, 766 F.2d at 796. The exact position which the successful .plaintiff was unlawfully denied or removed, from need not be available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F.Supp. 397, 400 (E.D.Pa.1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed, to reinstate plaintiff in the event of an adverse verdict to a comparable position" }, { "docid": "15310536", "title": "", "text": "about and acquiesced in, but also directed Paone’s firing of Feldman for engaging in his constitutionally protected speech. Saidel and Paone worked closely together on PHA matters, and Feldman’s reports implicated both Saidel and Paone in the mismanagement of PHA Paone testified that before firing Feldman, he spoke with Saidel about the matter and that Saidel “concurred” with the decision to terminate Feldman. Paone further testified that he and Saidel discussed the reorganization of the Internal Audit Department, one of the pretextual reasons initially offered for their discharge of Feldman. However, the Internal Audit Department, with only a few minor changes, remained the same. In response to written interrogatories, defendants admitted that the only step taken to reorganize the department was that the director of the Internal Audit Department “no longer reports to the Board of Commissioners but reports to the Executive Director”. The jury could reasonably have inferred that Paone would not have engaged in the unlawful firing of Feldman without first consulting with and obtaining Saidel’s approval, that Saidel thus participated in the retaliatory firing of Feldman; that they fired him in order to conceal their own mismanagement at PHA; and that this conduct sank to the levels of conduct that justify imposition of punitive damages under both federal and Pennsylvania law. We conclude that both Paone and Saidel must pay the modest punitive damages the jury assessed against them. We have considered defendants’ remaining arguments and find them to be similarly without merit. CONCLUSION The judgment of the district court is affirmed. . See, e.g., Robinson, 982 F.2d at 899 (3d Cir.1993) (affirming district court's denial of reinstatement where evidence supported finding of lingering hostilities between plaintiff and his supervisors); Versarge v. Township of Clinton, 984 F.2d 1359, 1369 (3d Cir.1993) (holding reinstatement inappropriate \"because of the great animosity between plaintiff and the other volunteer firefighters”); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir.1993) (upholding district court’s denial of plaintiffs’ request for reinstatement to former teaching positions on grounds that (1) school district and school building were very small; (2) record was filled" }, { "docid": "23352713", "title": "", "text": "the unlawful deprivation of the opportunity to earn wages through wrongful termination. The remedy, correspondingly, consists of restoring victims, through backpay awards and injunctive relief, to the wage and employment positions they would have occupied absent the unlawful discrimination. Id. (citations omitted). In Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 719, 98 S.Ct. 1370, 1381, 55 L.Ed.2d 657 (1978), the Court stated that the “Albemarle presumption in favor of retroactive liability can seldom be overcome.” Title VII contemplates that a corporation may be liable for dismissing an employee when its motives contain a mixture of legitimate and illegitimate reasons. Price Waterhouse v. Hopkins, 490 U.S. 228, 237-38, 109 S.Ct. 1775, 1783-84, 104 L.Ed.2d 268 (1989). Allowing trial courts to reduce a backpay award to account for the legitimate considerations would be extremely speculative and would frustrate the “make whole” purpose of Title VII. See Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. Reinstatement Finally, Robinson argues the trial judge abused his discretion in declining to reinstate Robinson to a position with SEPTA. Title VII provides that the court may order “reinstatement ... with or without back pay ..., or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g). Although reinstatement is the preferred remedy to avoid future lost earnings, a court may deny reinstatement “when, for example, animosity between the parties makes such a remedy impracticable.” Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The trial judge concluded that the “demonstrated irreparable conflict” between Robinson and SEPTA supervisors made reinstatement impracticable. He cited SEPTA’s complaints about Robinson and Robinson’s own testimony referring to SEPTA managers as South African dogs. Given hostilities such as those, the trial judge was well within his discretion in refusing to reinstate Robinson. Conclusion For the above reasons, the judgment of the district court is affirmed in part, reversed" } ]

[ { "docid": "22648584", "title": "", "text": "local positive law, as well as “‘custom or usage’ having the force of law,” Praprotnik, supra, at 124, n. 1, the trial judge must identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur, see Monell, 436 U. S., at 661, n. 2, or by acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local governmental entity. See Pembaur, supra, at 485-487 (White, J, concurring). We cannot fault the trial judge for not recognizing these principles in his instructions to the jury since this action was tried in October 1984, and the District Court did not have the benefit of our decisions in either Pembaur or Praprotnik to guide it. Similarly, the Court of Appeals issued its decision in this action before our decision in Praprotnik. Pursuant to its cross-petition in No. 88-214, the school district urges us to review Texas law and determine that neither Principal Todd nor Superintendent Wright possessed the authority to make final policy decisions concerning the transfer of school district personnel. See Brief for Respondent 6-8. Petitioner Jett seems to concede that Principal Todd did not have policymaking authority as to employee transfers, see Brief for Petitioner 30, but argues that Superintendent Wright had been delegated authority to make school district policy concerning employee transfers and that his decisions in this area were final and unreviewable. Id., at 30-32. We decline to resolve this issue on the record before us. We think the Court of Appeals, whose expertise in interpreting Texas law is greater than our own, is in a better position to determine whether Superintendent Wright possessed final policymaking authority in the area of employee transfers, and if so whether a new" } ]

[ { "docid": "15888071", "title": "", "text": "that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with final policymaking authority in the particular area involved, see Austin v. Paramount Parks, Inc., 195 F.3d 715, 728-29 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement. Bezmen was Airborne’s regional security manager for the greater New York area only, while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted. Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes. See, e.g., Austin v. Paramount Parks, 195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker); Smith v. United States, 896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker); Miller v. Correctional Med. Sys., Inc., 802" }, { "docid": "5129383", "title": "", "text": "plaintiffs’ § 1983 claims, I will first determine whether any of the three central allegations that survive the limitations period may be attributed to the City. For the reasons set forth below, I conclude that plaintiffs have sufficiently alleged municipal liability only as to the demotion claim and not as to the overtime and racist remarks claims, but I will discuss these claims on the merits. a. Applicable Law A municipality cannot be held liable under § 1983 solely on a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may, however, be liable under § 1983 when the alleged deprivation of constitutional rights is the result of action pursuant to an official municipal policy, id. at 690-91, 98 S.Ct. 2018, or the municipality exhibits deliberate indifference to the possibility of such a constitutional violation. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). i. Official Policies “[Tjhe acts and pronouncements of a single official may constitute policy for which the municipality is liable if that official is the ‘final policymaker’ in the area at issue.” Chin v. N.Y. City Hous. Auth., 575 F.Supp.2d 554, 561-62 (S.D.N.Y.2008) (citing St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), and Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000)). In determining whether the official had final policymaking authority in the particular area involved, courts consider “state and local positive law, as well as custom or usage having the force of law.” Jeffes, 208 F.3d at 57 (citation omitted). “The critical characteristic of final policymakers when employment is at issue is whether the municipal official has authority to formulate the rules governing personnel decisions rather than authority to make decisions pursuant to those rules — e.g., the hiring and firing of subordinates.” Chin, 575 F.Supp.2d at 562-63 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n. 12, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion) (noting that the discretion to hire and fire municipal employees does" }, { "docid": "21717905", "title": "", "text": "municipality cannot be held liable solely on a theory of responde at superior liability, see Monell v. Department of Social Services, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and therefore the plaintiff must demonstrate “a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. at 385, 109 S.Ct. 1197. In some circumstances, however, actions by individual policymakers can be sufficient to establish municipal liability. In particular, “municipal liability under § 1983 attaches where — and only where— a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Plaintiffs argue that Bernis Nelson, Corporation Counsel, satisfied this standard by directing various agencies of the New Rochelle government to issue the Plaintiffs violations. The court disagrees. Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law. See Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000). The plaintiff has the burden of proving this element. See id. at 57-58. Contrary to the Plaintiffs’ claims, however, nothing in the City of New Rochelle Charter indicates that the Corporation Counsel has any responsibility for, let alone final authority over, the issuance of code violations to city residents. Rather, the City Charter designates the Corporation Counsel “legal advisor of and attorney for the city and for all officers, departments, bureaus, boards and commissions thereof in matters relating to their official duties,” and grants it the responsibility of “prosecuting] or defending] all actions, suits and proceedings for and in behalf of the city.” CHARTER § 49. Although the Charter clearly grants the Corporation Counsel substantial responsibility, none if it even closely relates to the issuance of code violations. See Jeffes, 208 F.3d at 57 (the court must ask whether the governmental official is a final policymaker for the local" }, { "docid": "11882625", "title": "", "text": "of vicarious liability on a municipality for the torts of its employees as incompatible with § 1983’s causation requirement”). Because liability hinges on the distinction between making policy and executing policy, when plaintiffs allege municipal liability for the actions of an individual, courts must pay special attention to the authority granted that individual and the theory of causation being offered. See Praprotnik, 485 U.S. at 126, 108 S.Ct. 915 (plurality) (“If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability.”); Bd. Of County Commr’s of Bryan County, Okla. v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”). Whether or not a single individual possesses “final policymaking authority” is an issue of state law. Jett, 491 U.S. at 737, 109 S.Ct. 2702. An individual may possess such authority through an express legislative grant or by a delegation of authority from those who possessed it through an express legislative grant. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion) (“[ajuthority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority”); Soto v. Schembri, 960 F.Supp. 751, 757 (S.D.N.Y.1997). The individual need not possess general policymaking authority, but rather only authority to formulate policy governing the particular conduct at issue. Jeffes, 208 F.3d at 57 (“[T]he official in question need not be a municipal policymaker for all purposes. Rather, with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the [municipality’s] business.”) (quotes and citations omitted). Finally, it is for the court to decide whether an individual possessed final policymaking authority in a particular area." }, { "docid": "11882624", "title": "", "text": "entity.” Jett, 491 U.S. at 737, 109 S.Ct. 2702. While municipal policy is frequently set by a lawmaking body such as a city council, the acts and pronouncements of a single official may constitute policy for which the municipality is liable if that official is the “final policymaker” in the area at issue. St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000) (“The municipality cannot properly be held liable in such an action unless the ‘injury was inflicted by [its] lawmakers or by those whose edicts or acts may fairly be said to represent official policy.’ ”) (quoting Praprotnik, 485 U.S. at 121-22, 108 S.Ct. 915). Importantly, however, municipalities are not vicariously liable for the actions of their employees under a theory of respondeat superior. Jett, 491 U.S. at 735, 109 S.Ct. 2702; Monell, 436 U.S. at 694, 98 S.Ct. 2018; Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir.2007) (“Monell reasoned that § 1983 rejects the imposition of vicarious liability on a municipality for the torts of its employees as incompatible with § 1983’s causation requirement”). Because liability hinges on the distinction between making policy and executing policy, when plaintiffs allege municipal liability for the actions of an individual, courts must pay special attention to the authority granted that individual and the theory of causation being offered. See Praprotnik, 485 U.S. at 126, 108 S.Ct. 915 (plurality) (“If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability.”); Bd. Of County Commr’s of Bryan County, Okla. v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”). Whether or not a single individual possesses “final policymaking authority” is an" }, { "docid": "20491283", "title": "", "text": "shown that the official action was taken pursuant to a policy of the municipality. “Absent a showing of a causal link between an official policy or custom and the plaintiffs’ injury, [Jett] prohibits a finding of liability against the [municipal entity].” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). A plaintiff need not identify an articulated rule or regulation to demonstrate a municipal policy or custom. Patterson, 375 F.3d at 226. Proving that an employee with final decision-making authority engaged in racial discrimination will suffice to establish a municipal policy or custom. Everson, 2007 WL 539159, at *34 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). The question of whether a particular official has “final decision-making authority” is determined by state law. Id.; see also McMillian v. Monroe County, 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (“understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law”). “[T]he challenged action must have been taken pursuant to a policy adopted by the official responsible under state law for making policy in that area of the [municipal entity’s] business.” Everson, 2007 WL 539159, at *34 (citing Pembaur, 475 U.S. at 482-83, 106 S.Ct. 1292.) However, “The fact that a particular official — even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” Pembaur, 475 U.S. at 481-82, 106 S.Ct. 1292 (internal citations omitted); see also Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (“It does not suffice for these purposes that the official has been granted discretion in the performance of his duties.”) Where an official has discretion to hire and fire employees, but does not have the authority to set municipal employment policy, the official’s decisions will not subject the" }, { "docid": "7757026", "title": "", "text": "106 S.Ct. 1292. However, actors are not final policymakers merely because they have the authority to exercise discretion. See id. at 482-83, 106 S.Ct. 1292 (“The fact that a particular official—even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on the exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” (internal citations omitted)). See also Triplett v. District of Columbia, 108 F.3d 1450, 1454 (D.C.Cir.1997) (noting that a final policymaker must be capable of more than “mere exercise of discretion” (quoting St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988))). Rather, the official must possess policy-making authority specific to the allegedly tortious conduct. See Pembaur, 475 U.S. at 483, 106 S.Ct. 1292 (“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985))). Finally, the Court notes that various circuits have applied Section 1983 and its limitations as set forth in Monell to private institutions such as Georgetown University where such private institutions employ quasi-state actors. See Iskander v. Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (holding that an alleged shoplifter detained by a store detective must show that an “impermissible policy” or a “constitutionally forbidden” rule or procedure of the department store was the “moving force of the constitutional violation”) (“[J]ust as a municipal corporation is not vicariously liable upon a theory of respon-deat superior for the constitutional torts of its employees, a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” (internal citation omitted)); Powell v. Shopco Laurel Co., 678 F.2d 504, 505-06 (4th Cir.1982) (holding that an individual detained for alleged" }, { "docid": "15888072", "title": "", "text": "final policymaking authority in the particular area involved, see Austin v. Paramount Parks, Inc., 195 F.3d 715, 728-29 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement. Bezmen was Airborne’s regional security manager for the greater New York area only, while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted. Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes. See, e.g., Austin v. Paramount Parks, 195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker); Smith v. United States, 896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker); Miller v. Correctional Med. Sys., Inc., 802 F.Supp. 1126, 1132 (D.Del.1992) (holding that state medical director of prison medical services corporation was not final policymaker). See generally Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir.2000) (discussing standard for determining whether employee is final policymaker and noting that authority to exercise discretion in performance of duties is not, by itself, sufficient). Notably, a plaintiff has the burden of proof on the issue of whether an employee is a final policymaker, and “it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes, 208 F.3d at 57-58. Airborne would, therefore, not appear to have any liability under § 1983 for Bezmen or Gennarelli’s actions. Ordinarily, a district court should not raise sua sponte a nonjurisdietional defense not raised by the parties, unless the defense implicates values that transcend the concerns of the parties to an action. See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000). However, “the question of whether a given official is the [corporation's final policymaking official in a given area is a matter of" }, { "docid": "14879407", "title": "", "text": "“with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); see Pembaur, 475 U.S. at 481, 106 S.Ct. 1292 (“Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.”). Whether the individual in question exercises such authority “is not a question of fact in the usual sense.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Rather, the inquiry “is dependent upon an analysis of state law,” McMillian v. Monroe County, Alabama, 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997), requiring review of “the relevant legal materials, including state and local positive law, as well as custom or usage having the force of law.” Jett, 491 U.S. at 737, 109 S.Ct. 2702 (internal quotation marks omitted). A district court’s determination of whether an individual exercises final policymaking authority in a particular area is reviewed de novo. See Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.1997); Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.1992). The foregoing principles of § 1983 “policymaker” liability were articulated in the context of suits brought against municipalities and other local government defendants. Nevertheless, these principles are equally applicable to a private corporation acting under color of state law when an employee exercises final poli-cymaking authority concerning an action that allegedly causes a deprivation of federal rights. See Howell v. Evans, 922 F.2d 712, 724-25, vacated after settlement, 931 F.2d 711 (11th Cir.1991) (assessing whether prison medical director employed by private corporation exercised final policy-making authority for employer concerning equipment and staff procurement). In the present appeal, Austin asserts that Paramount’s liability under § 1983 derives from Hester’s single decision to acquiesce in Gatewood’s intention to effect Austin’s July 14, 1994 arrest on charges of forgery and uttering a forged writing. Accordingly, the relevant “policymaker” inquiry is whether Hester, as" }, { "docid": "23328671", "title": "", "text": "for initiating and conducting criminal prosecutions within their respective county jurisdictions.”); Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d 1126 (1981) (stating the same principle). On appeal, the County does not dispute that holding. Plaintiffs allege, however, that deputy prosecutor Iopa violated their constitutional rights. “Authority to make municipal policy may be ... delegated by an official who possesses such authority....” Praprotnik, 485 U.S. at 124, 108 S.Ct. 915 (citation and internal quotation marks omitted). Thus, the first question on appeal is whether Kimura (or Kimura’s predecessor Ono) delegated to Iopa final policymaking authority to decide whom to prosecute and whether to approve plea agreements. The Court in Praprotnik recognized that “special difficulties” arise when a plaintiff alleges that an official has delegated poli-cymaking authority: If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superi- or liability. If, however, a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1988 could not serve its intended purpose. Id. at 126, 108 S.Ct. 915. The question therefore becomes whether the policymaker merely has delegated discretion to act, or whether it has done more by delegating final policymaking authority: [I]f county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriffs decisions would represent county policy and could rise to municipal liability- Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. 1292 (emphasis in original); see Fiorenzo v. Nolan, 965 F.2d 348, 351 (7th Cir.1992) (“[A] municipality is not liable merely because the official who inflicted the alleged constitutional injury had the discretion to act on its behalf; rather, the official in" }, { "docid": "5129384", "title": "", "text": "which the municipality is liable if that official is the ‘final policymaker’ in the area at issue.” Chin v. N.Y. City Hous. Auth., 575 F.Supp.2d 554, 561-62 (S.D.N.Y.2008) (citing St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), and Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000)). In determining whether the official had final policymaking authority in the particular area involved, courts consider “state and local positive law, as well as custom or usage having the force of law.” Jeffes, 208 F.3d at 57 (citation omitted). “The critical characteristic of final policymakers when employment is at issue is whether the municipal official has authority to formulate the rules governing personnel decisions rather than authority to make decisions pursuant to those rules — e.g., the hiring and firing of subordinates.” Chin, 575 F.Supp.2d at 562-63 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n. 12, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion) (noting that the discretion to hire and fire municipal employees does not entail being the final policymaker for employment matters), and Hurdle v. Bd. of Educ., 113 Fed.Appx. 423, 425-26 (2d Cir.2004)). A subordinate officer, although not a final policymaker, may expose a municipality to liability if a policymaker ordered or ratified the subordinate’s actions. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir.2004) (citing Weber v. Dell, 804 F.2d 796, 803 (2d Cir.1986)). ii. Deliberate Indifference When evaluating a claim of deliberate indifference, the court must determine “whether the facts suggest that the policymaker’s inaction was the result of a ‘conscious choice’ rather than mere negligence.” Id. at 128 (quoting City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Accordingly, plaintiffs must show that a policy-making official had notice “of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was obvious and the policymaker’s failure to investigate or rectify the situation evidences deliberate indifference.” Id. (internal citations and quotation marks omitted). Deliberate indifference may also be inferred" }, { "docid": "20491284", "title": "", "text": "relevant state law”). “[T]he challenged action must have been taken pursuant to a policy adopted by the official responsible under state law for making policy in that area of the [municipal entity’s] business.” Everson, 2007 WL 539159, at *34 (citing Pembaur, 475 U.S. at 482-83, 106 S.Ct. 1292.) However, “The fact that a particular official — even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” Pembaur, 475 U.S. at 481-82, 106 S.Ct. 1292 (internal citations omitted); see also Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (“It does not suffice for these purposes that the official has been granted discretion in the performance of his duties.”) Where an official has discretion to hire and fire employees, but does not have the authority to set municipal employment policy, the official’s decisions will not subject the municipality to § 1981 liability. Pembaur, 475 U.S. at 484, n. 12, 106 S.Ct. 1292. In this Circuit, the plaintiff — even a pro se plaintiff — bears the burden of establishing as a matter of law that the conduct of a given official represents official policy. Everson, 2007 WL 539159, at *34 (citing Jeffes, 208 F.3d at 57-58). Hargett does not identify any official NYCTA policy that discriminates against employees on the basis of race. Hargett has also offered no evidence that Ross, McIntosh or Grill were final decision-makers with respect to employment policy at NYCTA. Indeed, the record reflects that the decision to terminate Hargett went through multiple levels of review before it was finalized. McIntosh’s initial disciplinary memorandum suggesting Hargett be terminated, which was approved of by Grill, was reviewable by the Step 1 and Step II officers. Ross’s decision as the Step I officer was reviewable by the Step II officer. Hyland — who is not a named defendant — issued the final decision to terminate Hargett for his infractions, and" }, { "docid": "11539171", "title": "", "text": "(S.D.N.Y. Mar. 6, 2014) (noting that “[a] plaintiff bears the burden of establishing an official’s status as a final policymaker with proof of the official’s scope of employment and his role within the municipal or corporate organization”). Thus, in order for the County to be liable for Kralik’s actions, Plaintiff must demonstrate that Kralik was a “policymaker with respect to the particular issue involved here.” Jeffes, 208 F.3d at 58 (internal quotation marks omitted). “A subordinate officer, although not a final policymaker, may also expose a municipality to liability, if a policymaker ordered or ratified the subordinate’s actions.” Williams v. City of New York, 690 F.Supp.2d 338, 344 (S.D.N.Y.2010) (citing Amnesty Am., 361 F.3d at 126). “The critical characteristic of final policymakers when employment is at issue is whether the municipal official has authority to formulate the rules governing personnel decisions rather than authority to make decisions pursuant to those rules — e.g., the hiring and firing of subordinates.” Williams, 690 F.Supp.2d at 344 (internal quotation marks omitted); see also Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. 1292 (noting that the discretion to hire and fire municipal employees does not render an official the final policymaker for employment matters). With respect to Kralik’s hiring and firing authority, the Rockland County Code provides that “[t]he Sheriff may, within the appropriations provided therefor, appoint jailers, ... and such other officers and employees as may be necessary to operate the County Jail facilities.” County of Rockland Code § 5 — 148(c) (available at http://ecode360.com/9663359). The Sheriffs appointment and termination power is circumscribed by New York’s Constitution, which places a sheriffs appointees under the civil service system. See Jeffes, 208 F.3d at 59 (“Prior to 1990, the [New York] Constitution provided that ‘the county shall never be made responsible for the acts of its sheriff.’ As a result of that provision, a sheriffs appointees were considered to be the employees of the sheriff himself, rather than of the city or county in which he operated, and most were regarded as beyond the scope of the civil service system. After the State constitution" }, { "docid": "23328670", "title": "", "text": "to trigger section 1983 liability under Monell, even though the decision is not intended to govern future situations.”). Whether an official has final policymaking authority is a question for the. court to decide based on state law. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (“[Wjhether a particular official has ‘final policymaking authority’ is a question of state law. As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.”) (emphasis in original) (citations and internal quotation marks omitted). The district court held that Hawaii Prosecutor Kimura possessed final policymak-ing authority to decide whom to prosecute and whether to approve plea agreements. See, e.g., Marsland v. First Hawaiian Bank, 70 Haw. 126, 130, 764 P.2d 1228 (1988) (County prosecutors have been delegated “primary authority and responsibility for initiating and conducting criminal prosecutions within their respective county jurisdictions.”); Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d 1126 (1981) (stating the same principle). On appeal, the County does not dispute that holding. Plaintiffs allege, however, that deputy prosecutor Iopa violated their constitutional rights. “Authority to make municipal policy may be ... delegated by an official who possesses such authority....” Praprotnik, 485 U.S. at 124, 108 S.Ct. 915 (citation and internal quotation marks omitted). Thus, the first question on appeal is whether Kimura (or Kimura’s predecessor Ono) delegated to Iopa final policymaking authority to decide whom to prosecute and whether to approve plea agreements. The Court in Praprotnik recognized that “special difficulties” arise when a plaintiff alleges that an official has delegated poli-cymaking authority: If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superi- or liability. If, however, a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1988 could" }, { "docid": "22182639", "title": "", "text": "through its deliberate conduct, the municipality was the “moving force” behind the alleged injury. Brown, 520 U.S. at 404, 117 S.Ct. 1382. B. Municipal Liability for Single Act of Final Policymaker Where a plaintiff seeks to hold a municipality liable for a “single decision by [a] municipal policymaker[ ],” Pembaur, 475 U.S. at 480, 106 S.Ct. 1292, the plaintiff must show that the official had final policymaking power, see Praprotnik, 485 U.S. at 123, 108 S.Ct. 915 (explaining that “only those municipal officials who have ‘final policymaking authority’ may by their actions subject the government to § 1983 liability”). Moreover, the challenged actions must be within that official’s area of policymaking authority. Id. (explaining that, pursuant to Pembaur “the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city’s business”); see also Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000) (explaining that the government official must be a final policymaker with respect to the particular conduct challenged in the lawsuit). An official has final authority if his decisions, at the time they are made, “may fairly be said to represent official policy.” McMillian v. Monroe County, Alabama, 520 U.S. 781, 784, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); see Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir.2003). Whether an official has final policymaking authority is a legal question, determined on the basis of state law. Jeffes, 208 F.3d at 57. As stated, the critical inquiry is not whether an official generally has final poli-cymaking authority; rather, the court must specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in the lawsuit. Id. (internal citations omitted). C. Whether Giordano was a Final Policymaker for the Relevant Area of Policy Plaintiffs argue that Waterbury is liable for Giordano’s actions because he was the Mayor and final policymaker of the City in the areas of law enforcement, safety, and social issues; and as a result he had final policymaking authority over" }, { "docid": "22977633", "title": "", "text": "2427, 2436, 85 L.Ed.2d 791 (1985) (plurality opinion) ,(“[T]he word ‘policy’ generally implies a course of action consciously chosen from among various alternatives:”). Gillette contends that the City Manager, by not countermanding the Fire Chief’s final decision to terminate Gillette and by not objecting to the hiring of counsel to represent the. City in the arbitration of Gillette’s grievance, ratified the Fire Chief’s decision and thereby effectively made employment policy. Gillette relies primarily on the statement in Praprotnik that “[i]f the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” 485 U.S. at 127, 108 S.Ct. at 926. The cases make clear that the unconstitutional discretionary actions of municipal employees generally are not chargeable to the municipality under section 1983. See Praprotnik, 485 U.S. at 126, 108 S.Ct. at 926 (observing that “[i]f the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability”). In Praprotnik, the Court considered whether a policymaker’s deferential review of a subordinate’s discretionary decision constituted a delegation of policy-making authority. The plurality concluded that there was no delegation and thus no basis for section 1983 liability, but observed that it would be a different case “if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker ... [or] if a series of decisions by a subordinate official manifested a ‘custom or usage’ of which the supervisor must have been aware.” Id. at 130, 108 S.Ct. at 927-28. Gillette’s evidence is not sufficient under Pembaur or Praprotnik to establish section 1983 liability based on the City Manager’s alleged acquiescence in Gillette’s termination. Pembaur requires that an official policymaker make a deliberate choice from among various alternatives to follow a particular course of action. See Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir.1992), quoting Pembaur, 475 U.S. at 483-84, 106 S.Ct. at 1300. Likewise, Praprotnik requires that a policymaker approve a subordinate’s decision and the basis" }, { "docid": "22977640", "title": "", "text": "had final authority with respect to disciplining fire fighters and had been delegated de facto authority to establish personnel policy within the Fire Department. See Jett, 491 U.S. at 737, 109 S.Ct. at 2723 (holding that district courts must identify official policymakers based. on “state and local positive law, as well as ‘custom or usage’ having the force of law”) (internal quotations omitted); see also Bouman, 940 F.2d at 1231 (remanding to the district court for a determination whether the county Board of Supervisors had delegated to the Sheriff the authority to establish final employment policy within the Sheriff’s Department). We review the district court’s ruling on this issue de novo. Brooks v. Hilton Casinos, Inc. 959 F.2d 757, 759 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 300, 121 L.Ed.2d 224 (1992). In Pembaur, the Court held that under certain circumstances a municipality may be held liable for a single decision by a municipal policymaker. 475 U.S. at 480, 106 S.Ct. at 1298. Municipal liability does not attach, however, unless “the decision-maker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policy:making official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” Id. at 481-82, 106 S.Ct. at 1299 (footnote omitted); accord Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir.1988) (Collins). Thus, in a situation factually similar to the one presented here, the plurality in Pembaur pointed out that the personnel decisions of a County Sheriff, who has discretion to hire and fire employees but is not the county official responsible for establishing county employment policy, could not be attributed to the municipality. Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. at 1300 n. 12; see also Collins, 841 F.2d at 341-42 (holding that the actions of a police sergeant with discretion to recommend hiring, firing, and discipline of employees could not be attributed to the municipality because the sergeant was not responsible for" }, { "docid": "23328672", "title": "", "text": "not serve its intended purpose. Id. at 126, 108 S.Ct. 915. The question therefore becomes whether the policymaker merely has delegated discretion to act, or whether it has done more by delegating final policymaking authority: [I]f county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriffs decisions would represent county policy and could rise to municipal liability- Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. 1292 (emphasis in original); see Fiorenzo v. Nolan, 965 F.2d 348, 351 (7th Cir.1992) (“[A] municipality is not liable merely because the official who inflicted the alleged constitutional injury had the discretion to act on its behalf; rather, the official in question must possess final authority to establish municipal policy with respect to the challenged action.”). In making these determinations, courts consider whether the official’s discretionary decision is “constrained by policies not of that official’s making” and whether the official’s decision is “subject to review by the municipality’s authorized policymakers.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. Applying those principles, the court in Hyland v. Wonder, 117 F.3d 405 (9th Cir.), as amended, 127 F.3d 1135 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1166, 140 L.Ed.2d 177 (1998), held that there had been a delegation of final policymaking authority. There, the San Francisco superior court judges possessed, final policymaking authority over the Juvenile Probation Department. See id., 117 F.3d at 415. The superior court judges, however, “left the internal management of the Juvenile Probation Department to [the chief juvenile probation officer] and attempted not to interfere.” Id. (internal quotation marks omitted). The superior court judges also “did not formulate any policy” regarding internal management of the department. Id. (internal quotation marks omitted). The" }, { "docid": "15888073", "title": "", "text": "F.Supp. 1126, 1132 (D.Del.1992) (holding that state medical director of prison medical services corporation was not final policymaker). See generally Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir.2000) (discussing standard for determining whether employee is final policymaker and noting that authority to exercise discretion in performance of duties is not, by itself, sufficient). Notably, a plaintiff has the burden of proof on the issue of whether an employee is a final policymaker, and “it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes, 208 F.3d at 57-58. Airborne would, therefore, not appear to have any liability under § 1983 for Bezmen or Gennarelli’s actions. Ordinarily, a district court should not raise sua sponte a nonjurisdietional defense not raised by the parties, unless the defense implicates values that transcend the concerns of the parties to an action. See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000). However, “the question of whether a given official is the [corporation's final policymaking official in a given area is a matter of law to be decided by the court.” Jeffes, 208 F.3d at 57 (emphasis added). Therefore, this court is not at liberty to respond to Airborne’s omission simply by deferring the question to the jury. Under these circumstances, this court is left with two options: (1) allowing plaintiffs’ § 1983 claims against Airborne to proceed to trial, and determining the issue of Gennarelli and Bezmen’s final policymaker status at the close of plaintiffs’ case, or (2) granting Airborne leave to renew its motion for summary judgment on the issue. Because the question of final policymaker status presents a discrete issue that is not otherwise intertwined with the resolution of the principal fact issues in this case and is one on which the court would benefit from written briefs by the parties, the latter approach will be taken. Accordingly, Airborne is given leave to renew its motion for summary judgment with respect to plaintiffs’ § 1983 false arrest and malicious prosecution claims on this ground. B. Plaintiffs’ § 1983 excessive force claim against Airborne must be dismissed." }, { "docid": "11882626", "title": "", "text": "issue of state law. Jett, 491 U.S. at 737, 109 S.Ct. 2702. An individual may possess such authority through an express legislative grant or by a delegation of authority from those who possessed it through an express legislative grant. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion) (“[ajuthority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority”); Soto v. Schembri, 960 F.Supp. 751, 757 (S.D.N.Y.1997). The individual need not possess general policymaking authority, but rather only authority to formulate policy governing the particular conduct at issue. Jeffes, 208 F.3d at 57 (“[T]he official in question need not be a municipal policymaker for all purposes. Rather, with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the [municipality’s] business.”) (quotes and citations omitted). Finally, it is for the court to decide whether an individual possessed final policymaking authority in a particular area. Jett, 491 U.S. at 737, 109 S.Ct. 2702. The critical characteristic of final policymakers when employment is at issue is whether the municipal official has authority to formulate the rules governing personnel decisions rather than authority to make decisions pursuant to those rules — e.g., the hiring and firing of subordinates. See Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. 1292 (plurality opinion) (noting that discretion to hire and fire municipal employees does not entail being the final policymaker for employment); Hurdle v. Bd. of Educ. of the City of N.Y., 113 Fed.Appx. 423, 425-26 (2d Cir.2004) (adopting Pembaur distinction between decisionmaking and policymaking and noting that “responsibility for making law or setting policy ... is authority to adopt rules for the conduct of government”) (quoting Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir.1992)); see also id. (Superintendent not a final policymaker in New York City on issue of transferring principals because transfer only authorized for reasons articulated by New York education law or upon request to the chancellor). In St Louis v." } ]

[ { "docid": "22657497", "title": "", "text": "Justice Kennedy delivered the opinion of the Court.\" We are called upon to resolve a series of issues regarding the law of habeas corpus, including questions of the proper application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We hold as follows: First, when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U. S. C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA’s effective date. Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the,prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Third, a habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a “second or successive” petition as that term is understood in the habeas corpus context. Federal courts do, however, retain broad powers to prevent duplicative or unnecessary litigation. I Petitioner Antonio Slack was convicted of second-degree murder in Nevada state court in 1990. His direct appeal was unsuccessful. On November 27,1991, Slack filed a petition for writ of habeas corpus in federal court under 28 U. S. C. § 2254. Early in the federal proceeding, Slack decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because, under the exhaustion of remedies rule explained in Rose v. Lundy, 455 U. S. 509 (1982), a federal court was required to dismiss a petition presenting" } ]

[ { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "22276150", "title": "", "text": "every time there is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And prisoners will almost always elect to appeal given all the free time on their hands. See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir.2000) (en banc). The dissent would have the courts of appeal entertain and decide each of those appeals no matter how clearly non-meritorious it appeared from the outset, and no matter whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the petitioner had filed. Congress could not have intended that. For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but also to all final judgments denying Rule 60Q3) relief from those earlier final judgments. III. The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "18491601", "title": "", "text": "or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "2983002", "title": "", "text": "inquiry, the Supreme Court’s endorsement of the FBI warnings that did not expressly state there is a right to counsel during interrogation, and the circuit split regarding whether Miranda requires explicitly informing the suspect that he has the right to counsel during interrogation, we hold that the Court of Criminal Appeals’s conclusion that the warnings adequately conveyed the right to counsel during interrogation was not objectively unreasonable. Therefore, we affirm the district court’s denial of relief with respect to Bridgers’s Fifth Amendment claim. B. Fourth Amendment 1. COA Standard of Review The district court denied a COA with respect to Bridgers’s Fourth Amendment claim. Under AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. at 1034. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" }, { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" }, { "docid": "17393629", "title": "", "text": "gave rise to a “constitutional issue eoncern[ing] greater loss of liberty when he did not commit a prior crime of violence.” Jan. 1, 2009 Mot. for a COA, at 2. On January 13, 2009, the Supreme Court decided Chambers, holding that Illinois’s crime of failure to report for penal confinement fell outside the scope of the ACCA’s “violent felony” definition because the offense did not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 129 S.Ct. at 691. Mr. Shipp contends he is entitled to a reduction in his sentence pursuant to Chambers. II. We must first determine whether we have authority to review the issues raised by petitioner. Title 28 U.S.C. § 2253 governs our review of a district court’s denial of a habeas petition. Under § 2253, we must grant a COA to a habeas petitioner before he may proceed in our court. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘substantial showing of the denial of a constitutional right.’ ”); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))). The COA we previously issued is confined to" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "17393630", "title": "", "text": "28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘substantial showing of the denial of a constitutional right.’ ”); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))). The COA we previously issued is confined to the statutory issue of the retro-activity of Chambers. Nevertheless, circuit courts, including our own, have recognized that they possess the authority to expand the COA to cover uncertified, underlying constitutional claims asserted by an appellant. See e.g., Adams, 223 F.3d at 1179-80 (expanding COA containing only procedural questions to include the underlying constitutional issue); see also Villot v. Varner, 373 F.3d 327, 337 n. 13 (3d Cir.2004) (exercising discretion to sua sponte expand the scope of the certificate of appealability granted by motions panel, citing 3d Cir. LAR 22.1(b)); Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir.2002) (“Although neither AEDPA nor [Fed. R.App. P. 22] specifically so provides, a court of appeals not only has the power to grant a COA where the district court has denied it as to all issues, but also to expand a COA to include additional issues when the district court has granted a COA as to some but not all issues.”); Nardi v. Stewart, 354 F.3d 1134, 1136-40 (9th Cir.2004) (expanding a COA to include a claim that" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" } ]

[ { "docid": "8597090", "title": "", "text": "be waived or changed by notice to or knowledge possessed by any agent or other person, but only by policy endorsement. To me, this means that the Insurance Company, having chosen the words of its policy, wishes to be governed by those words and nothing else. I would take it at its word, and construe the words under the rule of construction that applies to all such policies. In my opinion, the words of the policy, quoted in Judge Wright’s opinion, are readily susceptible to the construction that the Company’s obligation is to pay the insured’s medical expenses to the insured or to whatever person or organization has incurred such expenses in his behalf, i. e., “for” him. And so say the cases construing similar language: United States v. Government Employees Ins. Co., 4 Cir., 1972, 461 F.2d 58; United States v. State Farm Mut. Auto. Ins. Co., 10 Cir., 1972, 455 F.2d 789; United States v. United Services Auto Ass’n, 5 Cir., 1970, 431 F.2d 735. I also am of the opinion that the exclusion quoted in Judge Wright’s opinion does not plainly refer to the government’s statutory obligation to provide medical care to retired servicemen. Clearly, the government’s obligation is not “insurance” (subd. (2)) nor a “workman’s compensation or disability law or any similar law” (subd. (4)). The trial judge thought that subdivision (3) applies: “Medical, surgical, hospital or funeral service benefit or reimbursement plan.” This is a closer question, but to it I would apply another universal rule, relating to exclusions in insurance policies. Because they limit the coverage elsewhere apparently granted and because they tend to defeat the natural expectations of the insured and his beneficiaries, the rule of strict construction applicable to insurance policies is most strongly applicable to exclusions. Applying that rule, I cannot hold that the government’s statutory obligation is a “benefit or reimbursement plan” within the meaning of subdivision (3). The apparent purpose of the exclusion is to prevent a possible double recovery by the insured; if he is compensated by a benefit or reimbursement plan, he cannot collect again from Nationwide." } ]

[ { "docid": "14851280", "title": "", "text": "Co. v. Sideboard, 133 So. 669, 671 (1931). At the same time, the right of the third party beneficiary to maintain an action on the contract must “spring” from the terms of the contract itself. See Mississippi High School Activities Ass’n v. Farris, 501 So.2d 393, 396 (Miss.1987). The State Farm policies at issue here contained the following emphasized provisions: Persons for Whom Medical Expenses are Payable. We will pay medical expenses for bodily injury sustained by: 1. a. The first person named in the declarations; b. his or her spouse; and c. her relatives. Payment of Medical Expenses. We may pay the injured person or any person or organization performing the services. We have read similar policy language to support third party claims by medical care providers. See Automobile Club Ins. Co., 522 F.2d at 3 (upholding government’s right to recover for medical treatment rendered to insured service member); United Servs. Auto. Ass’n, 431 F.2d at 737 (same). The insurance policies involved in those cases obligated the insurer to pay all reasonable medical expenses incurred “to or for” the insured and provided that “[t]he company may pay the injured person or any person or organization rendering the services.... ” State Farm urges that it is obligated only for medical expenses actually incurred by the insured. No such limitation is imposed by the terms of the policies. State Farm is obligated to pay the costs of reasonable medical services, whether such costs were borne personally by the insured or, as here, directly by the medical care provider. We also cannot accept State Farm’s contention that the policies’ facility of payment clause — which provides, “We may pay the injured person or any person or organization performing the service” — makes the government an optional payee or incidental beneficiary. The Mississippi courts have interpreted such clauses to vest in the insurance company the right to exercise its discretion in making payment of the proceeds of the policy. See Metropolitan Life Insurance Co. v. Bates, 130 Miss. 399, 94 So. 216, 218 (1922). The courts have also stated, however, that in exercising" }, { "docid": "134096", "title": "", "text": "RONEY, Circuit Judge: The United States seeks reimbursement from the defendant insurance company for the cost of medical care provided to a veteran injured in an automobile accident. The defendant had issued to the veteran an automobile insurance policy with medical payments coverage. The district court held that Louisiana courts would deny recovery under the policy where no expense had been “incurred” by the insured, free medical services having been provided by the Government. We reverse and remand. The Government argues that the district court erred in applying state law and that federal law governs. We need not address this rather thorny ehoice-oflaws question. See, e. g., United States v. Nationwide Mutual Insurance Co., 499 F.2d 1355 (9th Cir. 1974). Our analysis indicates the result would be the same under both Louisiana and federal law. The Government, as a third party beneficiary to the insurance contract, is entitled to collect the cost of medical care for an insured veteran to the extent of the veteran’s automobile insurance coverage. Recovery is not barred by the exclusionary provision that makes the policy inapplicable to the extent medical expenses are paid under the provisions of workmen’s compensation or disability benefits law or “any similar law.” On May 25, 1972, Kenneth A. Curtis, an air force veteran, was injured while driving his automobile. In accordance with the provisions of 38 U.S.C.A. § 610, the United States provided Curtis medical treatment in a Veterans Administration hospital. These services were rendered without charge to Curtis. At the time of the accident, Curtis was covered by an automobile insurance policy with Automobile Club Insurance Company. That policy provided $5,000 coverage for all reasonable medical expenses incurred “[t]o or for the named insured” unless the medical expense is paid or payable under the terms of “workmen’s compensation or disability benefits law or any similar law.” Curtis received $521.57 from the insurer for his private medical expenses. The United States sought payment from the insurer for the remainder of the policy coverage ($4,478.43) to cover the expenses incurred on behalf of Curtis. Following the district court’s granting of summary" }, { "docid": "21598681", "title": "", "text": "and that the movant is ‘entitled to a judgment as a matter of law.’ ” Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987). In reviewing the facts we accord the advantage to the party opposing the motion by drawing all reasonable inferences favorable to the non-mover. Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577 (5th Cir.1986). We decide questions of law de novo. Walker v. Sears, Roebuck & Company, 853 F.2d 355 (5th Cir.1988). The government invites our attention to United States v. Government Employees Insurance Co., 440 F.2d 1338 (5th Cir.1971) (GEICO), and United States v. United Services Automobile Association, 431 F.2d 735 (5th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971) (USAA). In the GEICO case we affirmed a judgment awarding insurance payments to the United States for medical benefits provided to a serviceman as a consequence of an auto accident. The payments were made under the uninsured motorist provision obliging the insurer “to pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile.” The policy broadly defined “insured” to include “any person, with respect to damages he is entitled to recover because of bodily injury to which this part applies.” We concluded that the United States was an insured in this setting. In the USAA case we affirmed a holding that the United States was a third-party beneficiary under an auto liability policy and, as such, could sue to recover the costs of medical services rendered to an insured. The insured was a military dependent and was treated at no charge at a military hospital as part of the fringe benefits due his father. The claim was made under the medical-payment provision of the policy which called for payment for reasonable medical expenses. The policy provided that the payment could be made either to the insured or to the person or organization rendering the services. These cases are instructive but not dis-positive. The Allstate policy" }, { "docid": "14352358", "title": "", "text": "negligence created the need for government medical services. It is not always possible to receive reimbursement from a negligent third party. Therefore, the government often-times found that it was advantageous for it to seek reimbursement for its medical services from insurance carriers that have contracted with the injured military personnel. Prior to the enactment of § 1095 in 1985, the federal courts generally had held that the United States could recover medical expenses from military personnel’s private insurance carriers. Unlike negligence actions against tort-feasors that were based on explicit federal statutory authority, these actions against the injured member’s carrier were based on state third-party beneficiary law. See United States v. State Farm Mut. Auto. Ins. Co., 936 F.2d 206 (5th Cir.1991); United States v. Government Employee Ins. Co., 461 F.2d 58 (4th Cir.1972); United States v. State Farm Mut. Auto. Ins. Co., 455 F.2d 789 (10th Cir.1972); United States v. California State Auto. Ass’n, 385 F.Supp. 669 (E.D.Cal.1974), aff'd, 530 F.2d 850 (9th Cir.1976). By operation of the terms and definitions in private insurance contracts, the government was characterized as a third-party beneficiary and thus entitled to reimbursement for the cost of medical services for which the private insurer was liable. These state law based contract actions encountered, however, a significant hurdle. Because recovery under a third-party contract theory depended on the terms of each individual insurance policy and on state third-party beneficiary law, insurers were able to defeat the government’s recovery by inserting in the.policy an exclusion denying payment in situations in which the United States provided the services. See H.R.Rep. No. 300, 99th Cong., 1st Sess. 8 (1985), reprinted in 1986 U.S.C.C.A.N. 42, 756, 763. These exclusionary clauses relieve the insurance carrier of liability for. payment where the policy holder has no legal obligation to pay or where the care is provided in a government facility, notwithstanding the fact-.that the insurance carrier would have provided reimbursement for the cost of care for the same individual if that care were provided in a nongovernment hospital. Id. at 763-64. In enacting § 1095, Congress’ initial legislative effort was limited to" }, { "docid": "21598686", "title": "", "text": "absences or ambiguities must be construed against the insurer. We do so here and hold that the United States is entitled to appropriate reimbursement for the reasonable medical services rendered to the Allstate insureds. Finally, we find no genuine dispute of a material fact, nor do we find any relevant abuse of discretion in any express or implied evidentiary ruling. We perceive the sole issue to be whether judgment should enter as a matter of law. We conclude that it should. For these reasons, the judgment of the district court is, in all respects, AFFIRMED. . The policies contain the following pertinent provisions: Insuring Agreement We will pay Personal Injury Protection benefits because of bodily injury resulting from a motor vehicle accident and sustained by a covered person. Personal Injury Protection consists of necessary expenses for medical ... services. ***** * \"Covered Person\" ... means you or any family member while occupying or when struck by a motor vehicle.... . Similar contractual provisions have been construed in favor of the United States determining it to be a third-party beneficiary. Accord United States v. Automobile Club Insurance Company, 522 F.2d 1 (5th Cir.1975); United States v. Government Employees Insurance Co., 461 F.2d 58 (4th Cir.1972); and United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789 (10th Cir.1972)." }, { "docid": "6706480", "title": "", "text": "The majority did not discuss the provision in the policy requiring the insurance company to pay medical expenses incurred “for” the insured. It simply concluded that Dr. Jones was too far removed from the contract to be considered as a third-party beneficiary. Under the policy provisions, Dr. Jones was not expressly named as a third-party beneficiary. Even so, the dissenters would have implied a right to recover under the contract provision providing payment of medical expenses incurred “for” the insured. The Jones case is distinguishable from the case at bar. Here the State Farm policy provides, inter alia, that the company may pay “the injured person or any person or organization rendering the services.\" The Government is expressly named as a third-party beneficiary to the contract because it is the “organization rendering the services”. In Jones the insurance contract did not contain a similar “Payment of Claim” provision directing payment to “any person or organization rendering the services”. In the Jones case, the Court cited its prior decision in Traders & General Ins. Co. v. Sand Springs Home, supra, in recognition of the rule that a third-party beneficiary may sue on the contract if the parties anticipate such right by reason of benefits accruing to the insured. It is a general rule that where the third-party beneficiaries are so described as to be ascertainable, it is not necessary that they be specifically named in the contract in order to recover thereon and it is not necessary that they are identifiable at the time the contract is made. Watson v. Aced, 156 Cal.App.2d 87, 319 P.2d 83 (1957); Griffith v. Stucker, 91 Kan. 47, 136 P. 937 (1913); Smith v. Bowman, 32 Utah 33, 88 P. 687 (1907). In United States v. United Services Automobile Association, 431 F.2d 735 (5th Cir. 1970), cert. denied 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971), the minor son of an Air Force officer was injured by a car and was treated free of cost at Government facilities as provided by 10 U.S.C.A. § 1076. The United States and the officer sued the" }, { "docid": "15090807", "title": "", "text": "(Ky.Ct.App.1981) held that the word “person” as used in § 304.-39-030(1) refers only to “living human beings.” The Commissioner’s Comment to § 2 of the Uniform Motor Vehicle Repara tions Act (which is identical in this respect to § 304.39-030(1)) similarly states that “all persons injured in motor vehicle accidents within this State are entitled to receive basic reparation benefits.” (Emphasis supplied.) Uniform Motor Vehicle Reparations Act (U.L.A.) § 2, at 59 (1980). The Kentueky Supreme Court has recognized the commissioner’s comments as “persuasive authority” in interpreting Kentucky statutes. Couty v. Kentucky Farm Bureau Mutual Insurance Co., 608 S.W.2d 370, 371 (Ky.1980). See also Note, Kentucky No-Fault: An Analysis and Interpretation, 65 Ky.L.J. 466, 475 (1976) (the basic assumption of the statute is that “everyone sustaining personal injuries in an automobile accident in Kentucky will be entitled to basic reparation benefits”). b The government also argues that the purpose of the no-fault statute requires allowing any person legally obligated to pay the medical expenses of an insured person to claim benefits directly and on his own behalf from the no-fault insurer. We find this contention inconsistent with the language and policy of the statute. In section 304.39-240, the Kentucky legislature specifically made enforceable an assignment of a right to benefits for “medical expense to the extent the benefits are for the cost of products, services, or accommodations provided or to be provided by the assignee.” It thus clearly contemplated that a provider’s right to recover should arise only from assignment. In addition, in providing that “medical expense benefits may be paid by the reparation obligor directly to persons supplying products, services, or accommodations to the claimant,” section 304.39-210 makes the provider an optional payee or incidental beneficiary of no-fault policies in order to facilitate the insured person’s receipt of benefits, and does not make the provider a third party beneficiary with a right to enforce the insurance contract. Accord, Heusle v. National Mutual Insurance Co., 628 F.2d 833, 839 (3rd Cir.1980); United States v. Dairyland Insurance Co., 674 F.2d 750, 752 (8th Cir.1982). The stated purposes of the Kentucky no-fault" }, { "docid": "134098", "title": "", "text": "judgment in favor of the insurer, the Government brought this appeal. The terms of the insurance policy clearly establish the Government as a third party beneficiary. The policy obligates the insurer to pay, within certain limits not pertinent to this case, all reasonable medical expenses incurred “to or for” the insured and provides that “[t]he company may pay the injured person or any person or organization rendering the services . . . .” Indisputably the Government rendered medical services for the insured veteran. Louisiana recognizes the right of a third party beneficiary to sue on a contract if the contract clearly manifests an intention to confer a benefit on the third party. La.Stat. Ann. — Civil Code Arts. 1890, 1902. See Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572, 579 (1971); Hertz Equipment Rental Corp. v. Homer Knost Construction Co., 273 So.2d 685, 688 (La.Ct.App.1973). Here the language of the contract clearly indicates that third parties providing medical services “to or for the named insured” are to be beneficiaries of the policy and that payment to such a “person or organization rendering the services” is authorized. The Louisiana state court cases relied upon by the district court, Irby v. Government Employees Insurance Co., 175 So.2d 9 (La.Ct.App.1965), and Drearr v. Connecticut General Life Insurance Co., 119 So.2d 149 (La.Ct.App.1960), are inapposite and clearly distinguishable. In each of these cases a serviceman, after receiving free medical care from the Government, personally sought recovery under the policy. The Louisiana courts held that the servicemen could not recover, apparently on the theory that recovery would be a “windfall” to the serviceman since he had not incurred the expenses. In the instant case, however, it is the United States who seeks recovery for expenses incurred, not the insured. Moreover, even the dicta in Drearr upon which defendant relies (“Neither has the government any interest in any insurance coverage the veteran may have for ‘the expenses incurred,’ . . .”, Drearr, 119 So.2d at 153), does not compel a contrary decision here. As set forth in that opinion, the insurance policy in" }, { "docid": "14851276", "title": "", "text": "obvious connection it has to federal fiscal policy, places this case under the binding authority of Standard Oil, which counsels judicial restraint in the face of congressional inaction. State Farm points out that Congress legislatively authorized the government to recover its costs of medical care to military dependents from third-party insurers, regardless of any contract provision excluding or limiting charges for medical care rendered at a government facility. See 10 U.S.C. § 1095. That Congress has acted, State Farm contends, vindicates its position that this matter is uniquely federal and should be left to the exclusive control of Congress. The government maintains, however, and we agree, that the statute only provides an additional avenue of recovery. It is not fairly read as an overarching congressional expression of intent to preclude the government from enforcing its contractual rights as a beneficiary of a privately-made agreement between an insurer and a service member. The government does not, as in Standard Oil, seek to recover for injury to its relationship with its military members. It proceeds as medical care provider to recover under the terms of the individual insurance contracts and by force of state law. The judiciary is not being asked to intrude into the relationship of soldier and country. Nor is the court being asked to allow states to do so. Nothing here is demanding of a uniform federal response. Rather, the government is simply enforcing rights accruing to it by force of state law. Like many other circuits, we have recognized the government’s right to pursue such claims. See United States v. Automobile Club Ins. Co., 522 F.2d 1, 3 (5th Cir.1975); United States v. Government Emp. Ins. Co., 461 F.2d 58, 60 (4th Cir.1972); United States v. State Farm Mut. Auto Ins. Co., 455 F.2d 789, 792 (10th Cir.1972); United States v. Government Emp. Ins. Co., 440 F.2d 1338, 1339 (5th Cir.1971); United States v. United Services Auto. Ass’n, 431 F.2d 735, 737 (5th Cir.), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971). In Pennsylvania Nat. Mut. Cas. Ins. Co. v. Barnett, 445 F.2d 573" }, { "docid": "15090816", "title": "", "text": "such motor vehicle and use of the public roadways, be deemed to have accepted the provisions of this subtitle, and in particular those provisions which are contained in this section, (2)(a) Tort liability with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is “abolished\" for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefore____ a. The Dairyland decision rested also on a provision in the North Dakota statute limiting recovery to loss \"sustained by an injured person or his dependent survivors or incurred on his behalf by his spouse, relatives, or guardian.” While this sort of provision is not found in the Kentucky statute, we think that the policy it expresses is that which the Kentucky legislature intended. . The government suggests that denying it a right to recover benefits necessarily implies that a parent will be unable to recover the cost of her child’s care. This issue is not before us for decision, and we note also that state law generally provides for the direct right of parents to recover on behalf of their children. See, e.g., Atlanta Casualty Co. v. Jones, 247 Ga. 238, 275 S.E.2d 328, 330 (1981) (allowing a parent to recover her child’s medical expenses under a no-fault automobile policy). WELLFORD, Circuit Judge, dissenting in part: I agree with the majority that the government should not be entitled to recover as a third party beneficiary of the insurance contract. However, I cannot agree that the government should not be allowed reimbursement under the Kentucky no-fault statute. In United States v. Government Employees Ins. Co., 605 F.2d 669 (2d Cir.1979), the Second Circuit held that under the New York no-fault statute, the government could recover from an insurer medical expenses paid out for a serviceman’s injuries. The relevant language of that statutory scheme was explained as follows: Section 672(l)(a) of New York’s no-fault law provides, in part, that every no-fault insurance policy should provide for the payment of certain statutory benefits to" }, { "docid": "14851278", "title": "", "text": "(5th Cir.1971), we held that Standard Oil “precluded our making a decision” whether, under the Texas Workers’ Compensation Law, the government could recover from a veteran’s employer the expense of medical treatment furnished at a Veterans Administration hospital. A regulation of the Veterans Administration permitted recovery by the United States provided an assignment from the injured veteran had been obtained, but the government had no assignment. The government then asserted an independent right of recovery against the employer’s workers’ compensation carrier. We applied the Standard Oil principle and held that federal law, to the exclusion of state law, controlled the government’s claim. Barnett disavowed the relationship between its holding and our previous authority in Government Employees Insurance Co., 440 F.2d at 1339, and in United Services Automobile Ass’n, 431 F.2d at 737, which upheld the state law remedy for the government that we continue to recognize in our opinion today. Barnett, 445 F.2d at 576. In short, federal law does not displace the rights and liabilities that may have been created by the insurance contracts under state law. See United States v. Bender Welding & Mach. Co., 558 F.2d 761, 765 (5th Cir.1977) (holding that notwithstanding Standard Oil, government was entitled by subrogation to be reimbursed for medical expenses incurred on behalf of veterans who had assigned their compensation claims against employer to United States; noting with approval, but not addressing, government’s third party beneficiary claims). Therefore, if the government is a third party beneficiary of the insurance policies under state law, the government is entitled to summary judgment. III. Under Mississippi law, in order for a stranger to a contract to sue to enforce its term, “the contract between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties.” Burns v. Washington Savings, 171 So.2d 322, 325 (Miss.1965). The third party need not be expressly identified in the contract; it is enough that the beneficiary is a member of a class intended to be benefited. See Yazoo & M.V.R.R." }, { "docid": "15090822", "title": "", "text": "qualifies as a “person” entitled to reparation benefits. This analysis is consistent with the no-fault statute policy of spreading liability among a large class of individuals, and is also consistent with the policy of compensating promptly those who have suffered economic loss. Further, such an interpretation will in no way influence the government’s decision whether to pay, or not to pay, injured servicemen. Indeed, the fact that the government might be reimbursed would only encourage prompt payment and could only enhance prompt reparation for needed medical care for those injured. The equities in this case clearly weigh in favor of the government. Should the government not be able to recover, the insurer experiences a two-fold windfall. First, it is relieved of paying that which it would otherwise have been required to pay had there been no third-party payment. Second, the insurer keeps premiums paid not only by the injured serviceman, but also those paid by the driver of the automobile, and the government is forced to bear a burden which should rightfully fall on the insurer. In United States v. Dairyland Ins. Co., 674 F.2d 750 (8th Cir.1982), after interpreting the North Dakota no-fault statute, the court concluded that the government was not entitled to reimbursement for expenses paid for a serviceman’s medical needs. In that case, however, recovery was limited to loss “sustained by an injured person ‘or his dependent survivors or incurred on his behalf by his spouse, relatives, or guardian.’ ” Id. at 753 (quoting N.D.Cent.Code § 26-41-09). That language is more restrictive than that of the Kentucky statute previously analyzed (“every person”). Similarly, in Heusle v. National Mutual Ins. Co., 628 F.2d 833, 839 (3d Cir.1980), the Pennsylvania no-fault statute included a provision expressly relieving the insurer of liability for amounts paid by “any government.” See Pa.Stat.Ann. tit. 40, § 1009.206(a) (Purdon Supp.1980). The Kentucky no-fault law contains no such provision. Heusle is therefore inapplicable to the facts of this case. For these reasons I respectfully dissent; I would reverse the judgment of the district court, and render judgment for the government. . I take note" }, { "docid": "14851279", "title": "", "text": "under state law. See United States v. Bender Welding & Mach. Co., 558 F.2d 761, 765 (5th Cir.1977) (holding that notwithstanding Standard Oil, government was entitled by subrogation to be reimbursed for medical expenses incurred on behalf of veterans who had assigned their compensation claims against employer to United States; noting with approval, but not addressing, government’s third party beneficiary claims). Therefore, if the government is a third party beneficiary of the insurance policies under state law, the government is entitled to summary judgment. III. Under Mississippi law, in order for a stranger to a contract to sue to enforce its term, “the contract between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties.” Burns v. Washington Savings, 171 So.2d 322, 325 (Miss.1965). The third party need not be expressly identified in the contract; it is enough that the beneficiary is a member of a class intended to be benefited. See Yazoo & M.V.R.R. Co. v. Sideboard, 133 So. 669, 671 (1931). At the same time, the right of the third party beneficiary to maintain an action on the contract must “spring” from the terms of the contract itself. See Mississippi High School Activities Ass’n v. Farris, 501 So.2d 393, 396 (Miss.1987). The State Farm policies at issue here contained the following emphasized provisions: Persons for Whom Medical Expenses are Payable. We will pay medical expenses for bodily injury sustained by: 1. a. The first person named in the declarations; b. his or her spouse; and c. her relatives. Payment of Medical Expenses. We may pay the injured person or any person or organization performing the services. We have read similar policy language to support third party claims by medical care providers. See Automobile Club Ins. Co., 522 F.2d at 3 (upholding government’s right to recover for medical treatment rendered to insured service member); United Servs. Auto. Ass’n, 431 F.2d at 737 (same). The insurance policies involved in those cases obligated the insurer to pay all reasonable medical expenses" }, { "docid": "14352357", "title": "", "text": "F.2d 898, 901 (7th Cir.1992); United States v. On Leong Chinese Merchants Ass’n Bldg., 918 F.2d 1289, 1296-97 (7th Cir.1990), cert. denied, — U.S. —, 112 S.Ct. 52, 116 L.Ed.2d 29 (1991); Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). In turning to the legislative history of the section, we believe that it is important to evaluate that history against the backdrop of the pre-existing statutory scheme and case-law in this area. Before the enactment of § 1095, the government was entitled, as it is today, to recover medical care costs under federal tort law from third-party tortfeasors who injured military personnel. See Federal Medical Care Recovery Act, 42 U.S’.C. §§ 2651-58 (FMCRA). Because military personnel receive free medical care after being injured in an automobile accident, the tortfeasor who caused the injury could escape financial responsibility to the individual for the medical services rendered. The FMCRA was enacted to permit the government to obtain reimbursement from those persons whose negligence created the need for government medical services. It is not always possible to receive reimbursement from a negligent third party. Therefore, the government often-times found that it was advantageous for it to seek reimbursement for its medical services from insurance carriers that have contracted with the injured military personnel. Prior to the enactment of § 1095 in 1985, the federal courts generally had held that the United States could recover medical expenses from military personnel’s private insurance carriers. Unlike negligence actions against tort-feasors that were based on explicit federal statutory authority, these actions against the injured member’s carrier were based on state third-party beneficiary law. See United States v. State Farm Mut. Auto. Ins. Co., 936 F.2d 206 (5th Cir.1991); United States v. Government Employee Ins. Co., 461 F.2d 58 (4th Cir.1972); United States v. State Farm Mut. Auto. Ins. Co., 455 F.2d 789 (10th Cir.1972); United States v. California State Auto. Ass’n, 385 F.Supp. 669 (E.D.Cal.1974), aff'd, 530 F.2d 850 (9th Cir.1976). By operation of the terms and definitions in private insurance contracts," }, { "docid": "1518867", "title": "", "text": "obligated to treat, and should not have to absorb that cost. Charging a veteran for the medical care costs that he is entitled to receive from a workmen’s compensation carrier violates the purpose of neither statute. Where the Veterans Administration has taken a voluntary assignment of a veteran-employee’s compensation claim, as prescribed by the regulations, 38 C.F.R. § 17.-48, it is entitled to recover the medical care cost as a subrogee of the employee’s rights. This holding is consistent with this Court’s decision in Pennsylvania National Mut. Cas. Ins. Co. v. Barnett, 445 F.2d 573 (5th Cir. 1971). There we sustained the workmen’s compensation insurance carrier’s position that the V.A. hospital’s recovery for medical treatment rendered an injured employee was, by regulation, conditioned upon the procurement of an assignment. Although we need not address the third-party beneficiary claims of the Government, we note the analogy between this decision and the third-party beneficiary cases in which the Government has been allowed reimbursement from a liability insurer for the cost of medical care provided to an injured veteran. See., e. g., United States v. Automobile Club Ins. Co., 522 F.2d 1 (5th Cir. 1975); United States v. United Services Automobile Ass’n, 431 F.2d 735 (5th Cir. 1970); United States v. Government Employees Ins. Co., 461 F.2d 58 (4th Cir. 1972); United States v. State Farm Mutual Automobile Ins. Co., 455 F.2d 789 (10th Cir. 1972). United States v. Standard Oil of California, 322 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), was not a subrogation case, and reliance on the denial of recovery to the Government in that case is misplaced. In Standard Oil the Supreme Court held that, in the absence of legislation providing a right of recovery, the Government could not recover from a tort-feasor amounts expended for an injured soldier’s hospitalization and for his compensation paid during disability. The injured soldier had previously accepted payment from the tort-feasor’s insurer and executed a release. The case dealt only with the Government’s independent right of recovery against the tort-feasor. The Court noted expressly [t]he Government’s claim, of course, is not" }, { "docid": "15090810", "title": "", "text": "§ 304.39-060(1)(2), and, in accordance with § 304.- 39-020(2), to the limitation of basic reparation benefits to not more than $10,000 per individual per accident. No-fault thus ensures direct and speedy compensation, but the amount of compensation awarded under the no-fault system is limited and hence exhaustible. See generally R.E. Keeton & J. O’Connell, Basic Protection For The Traffic Victim, 274-76 (1965) (classic study setting forth the principles and structure of no-fault law). Given the exhaustible nature of no-fault benefits, we cannot accept the government’s position that any person legally obligated to provide medical services should be allowed to claim under the no-fault system, since this enlargement in the class of beneficiaries could frustrate the legislature’s stated intention of “providing prompt payment to victims of motor vehicle accidents,” K.R.S. § 304.39-010(2), by creating competing claims to basic reparation benefits. Our conclusion parallels that reached by the court in United States v. Dairyland Insurance Co., 674 F.2d 750, 754 (8th Cir.1982), where the court held that a provision in the North Dakota no-fault statute stating that the no-fault insurer was obligated to pay basic no-fault benefits for “economic loss resulting from (1) accidental bodily injury” did not entitle the government to recover benefits and in fact had nothing to do with the question of which parties could recover benefits, but instead described the types of claims which were payable. a We find ourselves in conflict with the Second Circuit’s decision in United States v. Government Employees Insurance Co., 605 F.2d 669 (2d Cir.1979), but we cannot accept its argument, see 605 F.2d at 671, that general statutory language entitling persons suffering loss on account of personal auto injury to no-fault benefits was intended to give any third party who incurs medical expenses the right to recover benefits on his own behalf. There is simply nothing in the language or policy of the Kentucky no-fault statute to suggest that such a radical result was intended by the legislature. We recognize that Allstate will in a certain sense realize a windfall, in that both Gee and Tangerman paid premiums for PIP coverage and" }, { "docid": "134100", "title": "", "text": "Drearr simply provided coverage “for the expenses incurred (a) for hospital charges for bed and board and (b) for hospital charges for necessary services and supplies.” There was no “to or for” clause or provision for payment to any “person or organization rendering the services,” provisions which are contained in the insurance policy we are here construing. This additional language distinguishes the instant case from Drearr, and also from United States v. St. Paul Mercury Indemnity Co., 238 F.2d 594 (8th Cir. 1956), another case relied upon by defendant and by the court in Drearr. Similar contractual provisions have been construed in United States v. United Services Automobile Association, 431 F.2d 735 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971); United States v. Government Employees Insurance Co., 461 F.2d 58 (4th Cir. 1972); United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789 (10th Cir. 1972), to authorize the Government to recover as a third party beneficiary for medical services rendered by it pursuant to statute. The analysis of these cases is persuasive. United Services Automobile Association would control the federal law issue in this Circuit as there is a firm policy that one panel of the Circuit will not overrule a decision of another panel. See Linebery v. United States, 512 F.2d 510 (5th Cir. 1975), and cases cited therein. Although the above cited cases all pertain to the right of the United States to recover the cost of medical care furnished to a serviceman or his family pursuant to different statutes, 10 U.S.C.A. §§ 1074 and 1076, the same rationale would obviously apply to the insured veteran here since he too had a statutory right to free medical care pursuant to 38 U.S.C.A. § 610. The district court’s decision that the United States could not recover where no expenses had been personally incurred by the insured made unnecessary its consideration of whether the policy’s exclu sionary clause barred the Government’s recovery. That exclusionary clause provides that the “policy does not apply to the extent that any medical expense is" }, { "docid": "134097", "title": "", "text": "provision that makes the policy inapplicable to the extent medical expenses are paid under the provisions of workmen’s compensation or disability benefits law or “any similar law.” On May 25, 1972, Kenneth A. Curtis, an air force veteran, was injured while driving his automobile. In accordance with the provisions of 38 U.S.C.A. § 610, the United States provided Curtis medical treatment in a Veterans Administration hospital. These services were rendered without charge to Curtis. At the time of the accident, Curtis was covered by an automobile insurance policy with Automobile Club Insurance Company. That policy provided $5,000 coverage for all reasonable medical expenses incurred “[t]o or for the named insured” unless the medical expense is paid or payable under the terms of “workmen’s compensation or disability benefits law or any similar law.” Curtis received $521.57 from the insurer for his private medical expenses. The United States sought payment from the insurer for the remainder of the policy coverage ($4,478.43) to cover the expenses incurred on behalf of Curtis. Following the district court’s granting of summary judgment in favor of the insurer, the Government brought this appeal. The terms of the insurance policy clearly establish the Government as a third party beneficiary. The policy obligates the insurer to pay, within certain limits not pertinent to this case, all reasonable medical expenses incurred “to or for” the insured and provides that “[t]he company may pay the injured person or any person or organization rendering the services . . . .” Indisputably the Government rendered medical services for the insured veteran. Louisiana recognizes the right of a third party beneficiary to sue on a contract if the contract clearly manifests an intention to confer a benefit on the third party. La.Stat. Ann. — Civil Code Arts. 1890, 1902. See Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572, 579 (1971); Hertz Equipment Rental Corp. v. Homer Knost Construction Co., 273 So.2d 685, 688 (La.Ct.App.1973). Here the language of the contract clearly indicates that third parties providing medical services “to or for the named insured” are to be beneficiaries of the policy" }, { "docid": "134099", "title": "", "text": "and that payment to such a “person or organization rendering the services” is authorized. The Louisiana state court cases relied upon by the district court, Irby v. Government Employees Insurance Co., 175 So.2d 9 (La.Ct.App.1965), and Drearr v. Connecticut General Life Insurance Co., 119 So.2d 149 (La.Ct.App.1960), are inapposite and clearly distinguishable. In each of these cases a serviceman, after receiving free medical care from the Government, personally sought recovery under the policy. The Louisiana courts held that the servicemen could not recover, apparently on the theory that recovery would be a “windfall” to the serviceman since he had not incurred the expenses. In the instant case, however, it is the United States who seeks recovery for expenses incurred, not the insured. Moreover, even the dicta in Drearr upon which defendant relies (“Neither has the government any interest in any insurance coverage the veteran may have for ‘the expenses incurred,’ . . .”, Drearr, 119 So.2d at 153), does not compel a contrary decision here. As set forth in that opinion, the insurance policy in Drearr simply provided coverage “for the expenses incurred (a) for hospital charges for bed and board and (b) for hospital charges for necessary services and supplies.” There was no “to or for” clause or provision for payment to any “person or organization rendering the services,” provisions which are contained in the insurance policy we are here construing. This additional language distinguishes the instant case from Drearr, and also from United States v. St. Paul Mercury Indemnity Co., 238 F.2d 594 (8th Cir. 1956), another case relied upon by defendant and by the court in Drearr. Similar contractual provisions have been construed in United States v. United Services Automobile Association, 431 F.2d 735 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971); United States v. Government Employees Insurance Co., 461 F.2d 58 (4th Cir. 1972); United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789 (10th Cir. 1972), to authorize the Government to recover as a third party beneficiary for medical services rendered by it pursuant to statute." }, { "docid": "15090808", "title": "", "text": "own behalf from the no-fault insurer. We find this contention inconsistent with the language and policy of the statute. In section 304.39-240, the Kentucky legislature specifically made enforceable an assignment of a right to benefits for “medical expense to the extent the benefits are for the cost of products, services, or accommodations provided or to be provided by the assignee.” It thus clearly contemplated that a provider’s right to recover should arise only from assignment. In addition, in providing that “medical expense benefits may be paid by the reparation obligor directly to persons supplying products, services, or accommodations to the claimant,” section 304.39-210 makes the provider an optional payee or incidental beneficiary of no-fault policies in order to facilitate the insured person’s receipt of benefits, and does not make the provider a third party beneficiary with a right to enforce the insurance contract. Accord, Heusle v. National Mutual Insurance Co., 628 F.2d 833, 839 (3rd Cir.1980); United States v. Dairyland Insurance Co., 674 F.2d 750, 752 (8th Cir.1982). The stated purposes of the Kentucky no-fault statute might be frustrated and are not furthered by granting the government a right to recover. Since the United States is legally obligated to cover the medical expenses of servicemen, its payment of those expenses should not be influenced by its ability to recover from the no-fault insurer. Thus the § 304.39-010(3) goal of encouraging “prompt medical treatment an<^ rehabilitation of the accident victim by providing prompt payment of needed medica4 care,” does not support the government s claim. Even more importantly, an expansive view of the class of third party beneficiaries to no-fault PIP coverage could undermine the primary compensatory purpose of no-fault automobile insurance. Like the Uniform Motor Vehicle Reparations Act (the model no-fault law), the Kentucky statute allows the automobile accident victim to receive compensation for net loss, including medical expenses and work loss, directly from his own insurance company. However, in exchange for this direct right of recovery, the Kentucky automobile owner must agree to the abolition of any tort rights “to the extent that basic reparation benefits are payable,” see" } ]

[ { "docid": "23181885", "title": "", "text": "of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether an individual is under a disability- The court has addressed the implications of this new standard in Hand v. Heckler, 761 F.2d 1545 (11th Cir.1985). There we noted legislative history that pointed out that the new standard required evidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Id. at 1548. We held in Hand that whether objective medical impairments could reasonably be expected to produce the pain complained of is a question of fact which, like all factfindings by the Secretary, is subject to review in the courts to see if it is supported by substantial evidence. The new standard must be applied in this case. Although the AU made his decision January 24, 1984 and the Appeals Council decision was May 19, 1984, and the new Act did not take effect until later in 1984, a review of the legislative history leaves no doubt that Congress intended the new law to apply to a case like this one. The House Report unequivocally states “these provisions will apply only with respect to cases involving disability determinations pending in HHS or in court on or after the date of enactment.” H.R.Rep. 98-618, 98th Cong.," } ]

[ { "docid": "14290595", "title": "", "text": "782 F.2d 1551, 1553 (11th Cir. 1986) (the 1984 statutory standard applies to cases pending in HHS or in court on the date of enactment). In Landry, we stated that the new standard for evaluating disabling pain requires: [Ejvidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Landry, 782 F.2d at 1553; Sewell v. Bowen, 792 F.2d 1065, 1068 (11th Cir.1986). Under Landry, this determination is a question of fact, and therefore is subject to the substantial evidence standard of review. Thus, the required review is to determine whether the Secretary’s determination is consistent with the statutory standard, 42 U.S.C.A. § 423(d)(5)(A), as con strued in Landry and whether it is supported by substantial evidence. Bridges contends that the Secretary improperly disregarded his testimony of pain and other symptoms, because they were uncorroborated. He urges that the AU did not consider: (1) statements of the claimant, as required by 42 U.S.C.A. § 423(d)(5)(A), or (2) whether his medical condition, based on all the evidence, could reasonably be expected to give rise to the alleged pain, as required by the second prong of the Landry test. In support of this contention, Bridges points to the AU’s finding that “[although the claimant alleges symptomatology of a disabling nature, his symptoms are not fully corroborated by laboratory and clinical findings.” A review of the entire record, however, reflects that the Secretary’s determination that Bridges does not suffer disabling pain is consistent with Landry and is supported by substantial evidence. First, Bridges testified that his primary complaint, shortness of breath, was relieved by medication. The AU also found that his underlying impairments are controlled by medication or medical treatment. Second, Bridges’ treating-physician evidence was inconsistent with his allegations of symptoms concerning the left side of his body. A physical examination revealed that Bridges’ range of motion was within normal limits. Third, despite Bridges’ contention" }, { "docid": "22116423", "title": "", "text": "medical evidence of pain or other symptoms established by medically acceptable clinical or other laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. (Emphasis added). This standard is only temporary, however, since the Act also contains a sunset provision. Section 3(a)(3) of the Act provides that § 3(a)(1) will apply only to “determinations made prior to January 1, 1987.” 98 Stat. at 1799. At that time, Congress intends to develop a permanent standard based on a study of pain conducted by the Secretary. See § 3(b) of the Act, 98 Stat. at 1799-1800; see also H.R.Rep. No. 618, 98th Cong., 2d Sess. 3, 13-14, reprinted in 1984 U.S. Code Cong. & Ad. News 3038, 3040, 3050-51. In implementing the temporary statutory standard, Congress intended to codify the approach already embraced by the Secretary through regulations. H.R.Rep. No. 618, 98th Cong., 2d Sess. 13, reprinted in 1984 U.S. Code Cong. & Ad. News at 3050. See Green v. Schweicker, 749 F.2d 1066, 1069 (3d Cir.1984). The Secretary’s regulations provide that subjective allegations of disabling symptoms, including pain, cannot alone support a finding of disability. 20 C.F.R. § 404.1529 (1985). The temporary standard likewise precludes finding disability based solely on subjective allegations of pain. Under the new standard, “[t]here must be evidence of an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.” S. Rep. No. 466, 98th Cong., 2d Sess. 24, reprinted in 130 Cong.Rec. S6221 (daily ed. May 22, 1984). See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986) (per curiam). The standard does not require, however, “objective evidence of the pain itself.” Green, 749 F.2d at 1071. We must apply the temporary statutory standard in the present case. The legislative history of the statute states that the standard is to apply “with respect to" }, { "docid": "2248199", "title": "", "text": "judicata bar an award of benefits based on an onset date prior to March 1, 1980, the date on which the AU denied Brown’s first application for benefits? We must affirm the Secretary’s factual determinations if they are supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This restrictive standard of review applies only to findings of fact and “no similar presumption of validity attaches to the Secretary’s conclusions of law, including determination of the proper standard to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986) (quoting Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982)). The Pain Standard We reverse the District Court’s affirmance of the Secretary’s determination that Brown was capable of performing sedentary work before September 2, 1981 because neither the ALJ’s recommended decision nor the Appeals Council’s final decision applied the proper standard to the subjective evidence of disabling pain caused by Brown’s back injury. This court has established a three-part “pain standard” that applies when a claimant attempts to establish disability through his or her own testimony of pain or other subjective symptoms. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). The claimant’s subjective testimony supported by medical evidence that satisfies the standard is itself sufficient to support a finding of disability. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); MacGregor, 786 F.2d at 1054; Landry, 782 F.2d at 1152. If the Secretary decides not to credit such testimony, he must discredit it explicitly, MacGregor at 1054, and articulate explicit and adequate reasons for doing so. Hale, 831 F.2d at 1011. Failure to articulate the reasons for discrediting subjective pain testimony requires, as a matter of law, that the testimony be accepted as true. Cannon v." }, { "docid": "23249017", "title": "", "text": "medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. 42 U.S.C. § 423(d)(5)(A) (emphasis added). This court took note of the amendments and adopted a pain standard that was consistent both with them and the Secretary’s regulations. Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir.1985). We acknowledged in Hand that the amendments overturned Boyd, 704 F.2d 1207, Simpson, 691 F.2d 966, and other decisions that had permitted proof of disability by subjective pain testimony alone. Hand, 761 F.2d at 1548, n. 4. We also recognized that when Congress passed § 423(d)(5)(A) it intended to codify the existing regulations and to establish a uniform standard that required that a finding of disability be based on verifiable evidence. Id. (citing S.Rep. No. 466 at 23-24; H.R.Rep. No. 618, 98th Cong., 2d Sess. 13 (1984)). In establishing our new standard in Hand we looked for guidance to the legis lative history of § 423(d)(5)(A), which provided: There must be [1] evidence of an underlying medical condition and [2] there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or [3] the objectively determined medical condition must be of severity which can reasonably be expected to give rise to the alleged pain. Hand at 1548 (quoting S.Rep. No. 466 at 24); See also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986) (discussing Hand). Our decisions since Hand and Landry have consistently applied this three-part pain standard. See e.g. MacGregor, 786 F.2d at 1054; Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); Cannon v. Bowen, 858 F.2d 1541," }, { "docid": "12123914", "title": "", "text": "past work as a receptionist which was sedentary in nature. I. Macia argues the Secretary failed to apply the new legal standard for the evaluation of pain as set forth in 42 U.S.C.A. § 423(d)(5). The relevant standard governing Macia’s complaints of pain and other symptoms is set forth in the statute: An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques ... must be considered in reaching a conclusion as to whether the individual is under a disability. 42 U.S.C.A. § 423(d)(5)(A). The Secretary must consider a claimant’s subjective testimony of pain if there is evidence of an underlying medical condition, and either (1) objective medical evidence to confirm the severity of the pain; or (2) that the medical condition could reasonably be expected to produce the pain. Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). The medical record includes objective evidence of pain, and the AU acknowledged that Macia experienced pain. The record supports the AU’s finding, however, that the degree of pain was not determinative when considered in the light of all of the evidence. While the medical evidence indicates Macia experiences pain and limited movement related to her right shoulder and left elbow, there is also evidence she has a normal range of motion in the left shoulder and the left wrist, and the right elbow and wrist are all" }, { "docid": "14290593", "title": "", "text": "entitled to disability benefits. This conclusion became the final decision of the Secretary on June 6, 1983. On the basis of the magistrate’s report and recommendation, and over objections filed by the claimant, the district court dismissed the action on the merits. This Court has a limited role in reviewing claims brought under the Social Security Act. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). Despite this deferential standard, it is imperative that the Court scrutinize the record in its entirety to determine the reasonableness of the decision reached. Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir.1984). No presumption of validity attaches to the Secretary’s determination of the proper legal standards to be applied in evaluating claims. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982). The pertinent standard governing Bridges’ complaints of pain and other symptoms is set forth in the statute: An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques ... must be considered in reaching a conclusion as to whether the individual is under a disability. 42 U.S.C.A. § 423(d)(5)(A). Although neither the AU nor the Secretary had the benefit of this standard, as phrased in the statute, because the 1983 administrative determination occurred before the statute’s enactment in 1984, the new law applies to this case. See Landry v. Heckler," }, { "docid": "9509059", "title": "", "text": "pain and held that none of these impairments, when considered alone or in combination, met or was equivalent to the criteria for disability as set out in the listing of impairments. The AU held that Jenkins was capable of performing a full range of medium work. On appeal, the Benefits Review Board and the district court upheld the Secretary’s denial of benefits. Jenkins claims the AU improperly evaluated his complaints of pain again. We agree. The standard for evaluating disabling pain was recently adopted by Congress in the Social Security Disability Benefits Reform Act of 1984. The standard reads: An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- 42 U.S.C. § 423(d)(5)(A) (West Supp.1989). First in Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir.1986), and more recently in Walker v. Bowen, 876 F.2d 1097, 1099 (4th Cir.1989), this court has interpreted this statute as requiring a claimant to show objective medical evidence of some condition that could reasonably be expected to produce the pain alleged, not objective medical evidence of the pain itself. In Foster, the AU recommended denial of benefits because “the treating physician failed to make a specific finding that Foster’s" }, { "docid": "22116424", "title": "", "text": "F.2d 1066, 1069 (3d Cir.1984). The Secretary’s regulations provide that subjective allegations of disabling symptoms, including pain, cannot alone support a finding of disability. 20 C.F.R. § 404.1529 (1985). The temporary standard likewise precludes finding disability based solely on subjective allegations of pain. Under the new standard, “[t]here must be evidence of an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.” S. Rep. No. 466, 98th Cong., 2d Sess. 24, reprinted in 130 Cong.Rec. S6221 (daily ed. May 22, 1984). See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986) (per curiam). The standard does not require, however, “objective evidence of the pain itself.” Green, 749 F.2d at 1071. We must apply the temporary statutory standard in the present case. The legislative history of the statute states that the standard is to apply “with respect to cases involving disability determinations pending in HHS or in court on or after the effective date of enactment.” H.R.Rep. No. 618, 98th Cong., 2d Sess. 5, reprinted in 1984 U.S. Code Cong. & Ad. News 3038, 3042. Since the present case was pending before the Secretary on the date the Act was enacted, October 9, 1984, it is governed by the new statutory standard. As indicated by the legislative history, our analysis under the new standard is essentially two-pronged. See Landry, 782 F.2d at 1553-54. 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. Even though the AU did not examine Duncan’s claim of disabling pain under this rubric, the AU’s findings of fact are sufficient for us to render a decision on" }, { "docid": "21718489", "title": "", "text": "consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether an individual is under a disability.” Id. at § 3(a)(1), 98 Stat. at 1799 (to be codified at 42 U.S.C. § 423(d)(5)) (emphasis added). This standard applies to all determinations (made by the Secretary or a court on review) to be made prior to January 1, 1987, at which time Congress intends to set permanent standards for evaluating pain. Id. at § 3(a)(3) and (b); see S.Rep. No. 466, 98th Cong., 2d Sess. 3, 23-24 (1984), U.S.Code Cong. & Admin.News 1984, p. 3038. Congress’ purpose in implementing this standard was to codify the regulations a-nd policies currently followed by the Administration in order to promote national uniformity in the application of the social security disability laws and insure that disability decisions are based on verifiable evidence. S.Rep. No. 466 at 23-24; H.R.Rep. No. 618, 98th Cong., 2d Sess. 13 (1984). The new standard prohibits basing eligibility for benefits solely on subjective allegations of pain (or other symptoms). There must be evidence of an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain. S.Rep. No. 466 at 24. We are required to apply the statutory standard enacted by Congress to the present case. Appellant asserts that this standard merely requires that the subjective symptoms be linked to medically determinable impairments. However, this argument is clearly foreclosed by the language of the statute and the above legislative history. We agree with the Secretary’s interpretation, as stated in her supplemental brief, that the record must document, by medically acceptable clinical or laboratory diagnostic techniques, the existence of a medical impairment which could reasonably" }, { "docid": "14292148", "title": "", "text": "in the absence of clinical and laboratory evidence of a condition which would cause such pain. . Section 3(a)(1) of the amendments provides: Section 223(d)(5) of the Social Security Act is amended by inserting after the first sentence the following new sentences: \"An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.” The new standard applies to determinations made prior to January 1, 1987. The amendment applies to disability determinations under Title XVI of the Social Security Act. Pub.L. No. 98-460, 98 Stat. 1794, 1799 § 3(a)(2) (1984). . Moreover, courts have noted that some administrative adjudicators have misinterpreted the previously existing social security rules and regulations on the evaluation of pain which (the Secretary contends) the amendments sought to ratify. These adjudicators have erroneously denied benefits in such cases. See Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir.1984) (case interpreting 1984 amendments). . We, of course, express no comment on the outcome of the issue of Davis’ status under the Social Security Act. However, on remand, the AU may wish to make its findings on the issue of Davis’ pain more explicit. While the AU noted that it had no basis to question" }, { "docid": "22146535", "title": "", "text": "749 F.2d at 1564. Subjective pain testimony supported by objective medical evidence of a condition that can reasonably be expected to produce the symptoms of which claimant complains is sufficient to sustain a finding of disability. See MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986); 42 U.S.C. § 423(d)(5)(A). The appropriate legal standard for evaluating a claimant’s subjective complaint of pain is for the Secretary to consider a claimant’s subjective testimony of pain if [he] finds evidence of an underlying medical condition, and either (1) objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) [that] the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir.1986) (citation omitted). This standard, promulgated by Congress in 1984, applies to all cases pending before the Secretary or the court. Landry v. Heckler, 782 F.2d 1551 (11th Cir.1986). In this case, the AU does not appear to have considered the second prong of the latter part of the test — whether Walker’s complaints of disabling pain stem from an underlying impairment that can reasonably be expected to produce such pain. Because the AU was bound to consider this, we remand the case to permit such a determination. Johns v. Bowen, 821 F.2d 551, 556 (11th Cir.1987). In weighing the pain component of Walker’s claim on remand, the ALJ must apply the new standard in light of all the evidence and determine “whether objective medical impairments could reasonably be expected to produce the pain complained of.” Id. at 1553. It is also clear that the AU rejected Walker’s testimony regarding the pain in both her legs, right arm, and stomach, without articulating his reasons. Where the claimant’s testimony is critical, the fact finder must articulate specific reasons for questioning a claimant’s credibility. See Jones, 810 F.2d at 1004. “[Disregard of such complaints without articulating the reason is inappropriate because it deprives the reviewing court of the ability to determine the validity of that action. When rejecting" }, { "docid": "14290594", "title": "", "text": "section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques ... must be considered in reaching a conclusion as to whether the individual is under a disability. 42 U.S.C.A. § 423(d)(5)(A). Although neither the AU nor the Secretary had the benefit of this standard, as phrased in the statute, because the 1983 administrative determination occurred before the statute’s enactment in 1984, the new law applies to this case. See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986) (the 1984 statutory standard applies to cases pending in HHS or in court on the date of enactment). In Landry, we stated that the new standard for evaluating disabling pain requires: [Ejvidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Landry, 782 F.2d at 1553; Sewell v. Bowen, 792 F.2d 1065, 1068 (11th Cir.1986). Under Landry, this determination is a question of fact, and therefore is subject to the substantial evidence standard of review. Thus, the required review is to determine whether the Secretary’s determination is consistent with the statutory standard, 42 U.S.C.A. § 423(d)(5)(A), as con strued in Landry and whether it is supported by substantial evidence. Bridges contends that the Secretary improperly disregarded his testimony of pain and other symptoms, because they were uncorroborated. He urges" }, { "docid": "22188830", "title": "", "text": "report and affirmed the AU’s determinations. DISCUSSION Holt contends that the district court erred in affirming the Secretary’s rejection of her disability claim because the AU did not give appropriate weight to her testimony regarding pain and other symptoms of her disability. We agree. This court has established a three part “pain standard” that applies when a claimant attempts to establish disability through his or her own testimony of pain or other subjective symptoms. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). The standard also applies to complaints of subjective conditions other than pain. Jackson v. Bowen, 873 F.2d 1111, 1114 (8th Cir.1989). The claimant’s subjective testimony supported by medical evidence that satisfies the standard is itself sufficient to support a finding of disability. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); MacGregor v. Bowen, 786 F.2d 1050 (11th Cir.1986); Landry, 782 F.2d at 1152. If the AU decides not to credit such testimony, he must articulate explicit and adequate reasons for doing so. Hale, 831 F.2d at 1011. Failure to articulate the reasons for discrediting subjective pain testimony requires, as a matter of law, that the testimony be accepted as true. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988); Hale, at 1054; MacGregor, 786 F.2d at 1054. The decision by the AU contains no indication that he applied this standard. His findings contain only the bare conclusion that “the claimant is capable of undertaking a full range of sedentary and light exertion.... The undersigned has found no evidence of any nonexertional impairment....” He made no mention of the evidence of at least two underlying medical conditions—obesity and hypertension—that might have satisfied the first prong of the standard. One or both of these conditions could have given rise to the pain," }, { "docid": "22382083", "title": "", "text": "that can reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir.1986); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991), requires that an ALJ apply a three part “pain standard” when a claimant attempts to establish disability through his or her own testimony of pain or other subjective symptoms. 921 F.2d at 1223. A claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability. Holt v. Sullivan, supra at page 1223; Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987). The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Indeed, in certain situations, pain alone can be disabling, even when its existence is unsupported by objective evidence. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.1992). A claimant may establish that her pain is disabling through objective medical evidence that an underlying medical condition exists that could reasonably be expected to produce the pain. 20 C.F.R. § 404.1529 provides that once such an impairment is established, all evidence about the intensity, persistence, and functionally limiting effects of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in deciding the issue of disability. The ALJ found, inter alia, as noted by the district court, that: The medical evidence does not reflect any neurologic deficits. The claimant’s reported activities of daily living do not suggest the presence of a condition which could reasonably be expected to produce disabling pain. Magistrate’s R & R, p. 10. The Appeals Council stated, The decision shows that the Administrative Law Judge’s evaluation as to the credibility of your subjective complaints is consistent with that ruling. In addition to assessing the objective medical findings" }, { "docid": "22619311", "title": "", "text": "are not enough to establish that there is a physical or mental impairment.”). In order to make this statutory requirement even more plain, Congress in 1984 amended Title II of the Social Security Act, purportedly to codify the regulatory standard for evaluating pain. See S.Rep. No. 466, 98th Cong., 2d. Sess. 23-24 (1984); H.R. Conf. Rep. No. 1039, 98th Cong., 2d Sess. 29 (1984), reprinted in 1984 U.S.C.C.A.N. 3080, 3087-88. The amendment, in language which closely paralleled the Secretary’s 1980 regulations, see 20 C.F.R. §§ 416.929 & 404.1529 (1983), provided that [a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all the evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory diagnostic techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- 42 U.S.C. § 423(d)(5)(A) (emphasis added). This standard was made applicable to SSI determinations as well by an amendment to Title XVI incorporating section 423(d)(5) by reference. See 42 U.S.C. § 1382e(a)(3)(G). Interpreting section 423(d)(5)(A), this court held that in order for pain to be found disabling, there must be objective medical evidence establishing some condition that could reasonably be expected to produce the pain alleged. Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir.1986). However, while a claimant must show by objective evidence the existence of an underlying impairment that could" }, { "docid": "9509060", "title": "", "text": "be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- 42 U.S.C. § 423(d)(5)(A) (West Supp.1989). First in Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir.1986), and more recently in Walker v. Bowen, 876 F.2d 1097, 1099 (4th Cir.1989), this court has interpreted this statute as requiring a claimant to show objective medical evidence of some condition that could reasonably be expected to produce the pain alleged, not objective medical evidence of the pain itself. In Foster, the AU recommended denial of benefits because “the treating physician failed to make a specific finding that Foster’s physical condition would result in the degree of pain alleged.” Foster, 780 F.2d at 1129 (italics in original). This court held that the AU’s finding went beyond the standard required in the Disability Reform Act, and, thus, was error. We held that Foster’s testimony of the extent and effect of his pain, supported by objective medical findings of a condition which could produce this pain, was sufficient for a finding of disabling pain. Foster, 780 F.2d at 1129-30. As we decided in our earlier opinion in this case, Jenkins’ complaints of pain have been medically documented. Furthermore, the ALJ found the existence of at least two conditions — the ankle injury and degenerative disc disease — which reasonably could be expected to produce this pain. Nevertheless, in considering Jenkins’ claims of disabling pain, the ALJ stated: The claimant has testified to the existence of pain, in fact, it appears that he is primarily alleging disability based upon his pain. There is no doubt that pain can be disabling. However, allegations of pain in and of" }, { "docid": "18886673", "title": "", "text": "and on the ground that it was not supported by objective medical evidence. Claimant now argues that both the Secretary and the district court applied the wrong standard for evaluating her subjective claims of pain. Congress established a new statutory standard for evaluating subjective complaints of disabling pain in the Social Security Disability Benefits Reform Act of 1984: An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which ... would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or other laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. 42 U.S.C. § 423(d)(5)(A) (Supp.1988). However, as this court noted in Duncan, 801 F.2d at 852, “[t]his standard is only temporary ... since the Act also contains a sunset provision. Section 3(a)(3) of the Act provides that § 3(a)(1) [42 U.S.C. § 423(d)(5)(A) ] will apply only to ‘determinations made prior to January 1, 1987.’ 98 Stat. at 1799. At that time, Congress intends to develop a permanent standard based on a study of pain conducted by the Secretary.” To implement the temporary standard, the Duncan court announced a two-prong test: First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective evidence confirms the severity of the alleged pain arising from the condition; or (2) wheth er the objectively established medical condition is of such severity that it can reasonably be expected to produce the alleged disabling pain. 801 F.2d at 853. Because the Secretary’s final determination in this case was made after January 1, 1987, plaintiff" }, { "docid": "4702108", "title": "", "text": "from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. Most recently, the Seventh Circuit, in reaffirming its position on this issue, had occasion to explain the import of this new statute in Sparks v. Bowen, 807 F.2d 616 (7th Cir., 1986). The court stated: The requirement that a claimant show an objectively verifiable abnormality is designed to screen out claims by hypochondriacs and goldbricks. No claim may be allowed without medical evidence showing that the complaint has an ascertainable cause. But once there is evidence of an objectively demonstrated abnormality and either “(1) ... objective medical evidence [confirms] the severity of the alleged pain arising from that condition or (2) the objectively determined medical condition [is] of a severity which can reasonably be expected to give rise to the alleged pain”, S.Rep. No. 98-466, 98th Cong., 2d Sess. 24 (1984), the requirement of § 423(d)(5)(A) is fulfilled. Id. at 618. See also Nelson v. Secretary of Health and Human Services, 770 F.2d 682, 685 (7th Cir.1985) (upholding ALJ’s determination of credibility in absence of supporting medical evidence to the contrary); 20 C.F.R. §§ 404.1529, 416.929. The court finds that the ALJ here properly applied the law of this circuit on the evaluation of pain, that is, there must be independent, objective medical evidence to support a claimant’s subjective complaints of pain before the claimant can be found disabled. After reviewing the medical testimony and Barge’s own testimony, the AU, in paragraph 4" }, { "docid": "22382082", "title": "", "text": "be conclusive.” 42 U.S.C. § 405(g). Substantial evidence is defined as more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982), and such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.1986). The court should not reweigh the evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.1986). A. Subjective complaints of pain The Secretary must consider a claimant’s subjective testimony of pain if she finds evidence of an underlying medical condition, and either (1) objective medical evidence to confirm the severity of the alleged pain arising from that condition, or (2) that the objectively determined medical condition is of a severity that can reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir.1986); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991), requires that an ALJ apply a three part “pain standard” when a claimant attempts to establish disability through his or her own testimony of pain or other subjective symptoms. 921 F.2d at 1223. A claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability. Holt v. Sullivan, supra at page 1223; Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987). The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Indeed, in certain situations, pain alone can be disabling, even" }, { "docid": "23249018", "title": "", "text": "passed § 423(d)(5)(A) it intended to codify the existing regulations and to establish a uniform standard that required that a finding of disability be based on verifiable evidence. Id. (citing S.Rep. No. 466 at 23-24; H.R.Rep. No. 618, 98th Cong., 2d Sess. 13 (1984)). In establishing our new standard in Hand we looked for guidance to the legis lative history of § 423(d)(5)(A), which provided: There must be [1] evidence of an underlying medical condition and [2] there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or [3] the objectively determined medical condition must be of severity which can reasonably be expected to give rise to the alleged pain. Hand at 1548 (quoting S.Rep. No. 466 at 24); See also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986) (discussing Hand). Our decisions since Hand and Landry have consistently applied this three-part pain standard. See e.g. MacGregor, 786 F.2d at 1054; Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). The Hand standard is fully consistent with the Secretary’s regulations, which remain in effect. The regulations provide that a claimant may establish disability based on subjective testimony of pain or other symptoms if “medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms.” 20 CFR §§ 404.-1529 and 416.929 (emphasis added). Similarly, under the Hand standard a claimant who satisfies the first part of the standard by proving the existence of an underlying medical condition through objective medical evidence may establish disability based on pain by his own testimony supported by either of two alternative kinds of medical evidence. The claimant may show either that objective medical evidence confirms the pain testimony, or that the objectively determined medical condition could reasonably be expected to give rise to the alleged pain. See MacGregor at 1054; Hale at 1011. While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged," } ]

[ { "docid": "10065363", "title": "", "text": "of these considerations, Barnett acted willfully as a matter of law as to all the unpaid taxes because the corporation paid other creditors when these taxes were owed. A failure to pay over taxes is willful, for section 6672 purposes, if it is voluntary, knowing and intentional even though it is not done with a bad purpose or an evil motive. Sorenson v. United States, 521 F.2d 325, 328 (9th Cir. 1975); Bloom v. United States, 272 F.2d 215, 223 (9th Cir. 1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). One who pays other creditors, rather than pay withholding taxes to the government, is liable for a willful failure to pay such taxes. Maggy v. United States, 560 F.2d 1372, 1375-76 (9th Cir. 1977), cert. denied, - U.S. -, 99 S.Ct. 86, 58 L.Ed.2d 112 (1978); Sorenson, supra, 521 F.2d at 328-29. I. Second Quarter The taxes for the second quarter were past due when the corporation was dissolved. Barnett admits that other creditors were paid after these taxes were due. His failure to pay the government the taxes collected for this quarter was therefore willful as a matter of law. The District Court properly entered summary judgment against Barnett for the penalty on the second quarter taxes. II. Third Quarter The corporation was not obligated to pay the taxes for the third quarter (July, August and September) until October 31, which was after the dissolution of the corporation. A responsible officer may be liable, as a matter of law, for a willful failure to pay taxes which were not due when his corporation folded. Teel v. United States, 529 F.2d 903, 906 (9th Cir. 1976). A. July and August Treasury Regulation 31.6302(c)-1(a)(1) obligated the corporation to deposit its collected taxes in a Federal Reserve Bank each month. The corporation failed to do it; instead, it kept the money in its general account and it paid other creditors. Payments to other creditors when monthly deposits were overdue showed that the failure to pay collected taxes was willful. Sherwood v. United States, 246 F.Supp. 502, 508" } ]

[ { "docid": "6690474", "title": "", "text": "required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. (Emphasis added.) It is well-settled § 6672 liability does not depend on the presence of a bad motive or the specific intent to defraud the government — elements associated with criminal liability. Burden v. United States, 486 F.2d 302, 304 (10th Cir.1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974); Bowen v. United States, 836 F.2d 965, 967-68 (5th Cir.1988); Bloom v. United States, 272 F.2d 215, 223-24 (9th Cir.1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). Rather “willfulness” for purposes of imposing civil liability under § 6672 is a “voluntary, conscious and intentional decision to prefer other creditors over the Government....” Although negligence does not give rise to section 6672 liability, “ ‘ the willfulness requirement is ... met if the responsible officer shows a “reckless disregard of a known or obvious risk that trust funds may not be remitted to the government....”’” A responsible person’s failure to investigate or to correct mismanagement after being notified that withholding taxes have not been paid satisfies the section 6672 willfulness requirement. Denbo, 988 F.2d at 1033 (citations omitted). The question posed in this en banc appeal is whether evidence satisfying the Denbo definition alone is sufficient to impose liability under § 6672, as a matter of law, or whether there remains some role for a jury to determine, in view of all relevant evidence, that a responsible person did not act willfully and therefore cannot be held liable for a corporation’s unpaid withholding taxes. The government responds to this question by citing us to case law from this circuit and others" }, { "docid": "23411443", "title": "", "text": "inaction trust funds belonging to the government will not be paid over but will be used for other purposes.” Hartman, 538 F.2d at 1341. Accord Bowen, 836 F.2d at 968; Kizzier, 598 F.2d at 1132. A responsible person also acts willfully by proceeding with a “ ‘reckless disregard of a known or obvious risk that trust funds may not be remitted to the government.’ ” Wood v. United States, 808 F.2d 411, 415 (5th Cir.1987) (quoting Brown v. United States, 591 F.2d 1136, 1140 (5th Cir.1979)); Mazo v. United States, 591 F.2d 1151, 1154 (5th Cir.), cert. denied sub nom. Lattimore v. United States, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979). Evidence that the responsible person had knowledge of payments to other creditors, including employees, after he was aware of the failure to pay over withholding taxes is proof of willfulness as a matter of law. See Emshwiller v. United States, 565 F.2d 1042, 1045 (8th Cir.1977). See also Hochstein v. United States, 900 F.2d 543, 548 (2d Cir.1990); Howard v. United States, 711 F.2d 729, 735 (5th Cir.1983); Teel v. United States, 529 F.2d 903, 905 (9th Cir.1976). A responsible person is also required to use funds acquired after the withholding tax liability arises to satisfy that liability. Thus, “[i]n the case of individuals who are responsible persons both before and after the withholding tax liability accrues * * * there is a duty to use unencumbered funds acquired after the withholding obligation becomes payable to satisfy that obligation; failure to do so when there is knowledge of the liability * * * constitutes willfulness.” Mazo, 591 F.2d at 1157. See also Kizzier, 598 F.2d at 1134; Teel, 529 F.2d at 905. Olsen’s conduct and knowledge are not in dispute and clearly satisfy the element of willfulness as defined by the foregoing authorities. In 1982 he knew the obligations of Precision Machine with regard to employee taxes withheld. He admits he was well aware of the consequences to him of the failure to pay over these taxes. He knew funds received by Precision Machine were being" }, { "docid": "6690475", "title": "", "text": "under § 6672 is a “voluntary, conscious and intentional decision to prefer other creditors over the Government....” Although negligence does not give rise to section 6672 liability, “ ‘ the willfulness requirement is ... met if the responsible officer shows a “reckless disregard of a known or obvious risk that trust funds may not be remitted to the government....”’” A responsible person’s failure to investigate or to correct mismanagement after being notified that withholding taxes have not been paid satisfies the section 6672 willfulness requirement. Denbo, 988 F.2d at 1033 (citations omitted). The question posed in this en banc appeal is whether evidence satisfying the Denbo definition alone is sufficient to impose liability under § 6672, as a matter of law, or whether there remains some role for a jury to determine, in view of all relevant evidence, that a responsible person did not act willfully and therefore cannot be held liable for a corporation’s unpaid withholding taxes. The government responds to this question by citing us to case law from this circuit and others that holds a responsible person who has knowledge of unpaid taxes and thereafter personally pays or directs the payment of claims of other creditors, or fails to take appropriate steps to ensure the taxes are paid ie.g., fails to investigate the matter or correct mismanagement), is willful as a matter of law. According to the government, to stray from this precedent ‘Vould largely emasculate Section 6672 and provide a blueprint for the avoidance of personal liability for those persons responsible for the failure to pay over trust fund taxes due the United States.” We are fully aware of the precedent whereby courts have seized on the notion that certain factual paradigms establish willfulness as a matter of law, even though the facts do not involve an intentional failure to pay over withholding taxes to the government. A responsible person’s failure to investigate the problem or correct mismanagement after receiving actual notice of a withholding tax delinquency represents the factual paradigm applied in this ease. Finley, 82 F.3d at 973; see also, Denbo, 988 F.2d at" }, { "docid": "10897364", "title": "", "text": "liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable. Two conditions must be met before an individual can be held liable under this provision: (1) he must be responsible for the collection and payment of withholding taxes, and (2) he must wilfully fail to collect and pay them over. Teel v. United States, 529 F.2d 903, 905 (9th Cir. 1976); Pacific National Ins. v. United States, 422 F.2d 29 (9th Cir. 1976). Responsibility for the collection and payment of withholding taxes under § 6672 can attach to high corporate officers, but this is not automatic. The test for responsibility of a corporate officer under § 6672 is a functional one, which focuses upon the degree of control and influence which the officer exercised over the financial affairs of the corporation and, more specifically, over the disbursement of funds and priority of payments to creditors. Corporate office does not per se, impose the duty to collect, account for and pay over the withheld taxes. On the other hand, an officer may have such a duty even though he is not the disbursing officer. Cf. Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), certiorari denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146.... Liability attaches to those with power and responsibility within the corporate structure for seeing that the taxes withheld from various sources are remitted to the Government. Scott v. United States, 354 F.2d 292, 296, 173 Ct.Cl. 650 (1965); see also Gefen v. United States, 400 F.2d 476, 482 (5th Cir. 1968), certiorari denied, 393 U.S. 1119, 89 S.Ct. 990, 22 L.Ed.2d 123. This duty is generally found in high corporate officials charged with general control over corporate business affairs who participate in decisions concerning payment of creditors and disbursal of funds. Monday v. United States, 421 F.2d 1210, 1214-1215 (7th Cir. 1970); Braden v. United States, 442 F.2d 342 (6th Cir. 1971). Under this test," }, { "docid": "23574472", "title": "", "text": "Hewitt v. United States, 5 Cir. 1967, 377 F.2d 921, 924. The responsible person also acts willfully if he proceeds with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the government. See, e. g., Teel v. United States, 9 Cir. 1976, 529 F.2d 903, 905; Newsome v. United States, 5 Cir. 1970, 431 F.2d 742, 746; Monday v. United States, 7 Cir. 1970, 421 F.2d 1210, 1216, cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48. The burden of proving lack of willfulness is on the taxpayer. E. g., Anderson v. United States, 8 Cir. 1977, 561 F.2d 162, 165; Liddon v. United States, supra. Sibley argues that he did not “willfully” fail to pay withholding taxes because, at the time the taxes became payable, he was no longer in a position to pay the taxes, and he did all he possibly could do to alert Brown to the necessity of paying the taxes. However, as we have already pointed out, Treasury regulations require withheld funds to be deposited during the quarter and dó not merely impose a duty to pay them at the end of the period. Sibley’s failure to make the withholding deposits required was itself “willful.” By not making the deposits, Sibley acted with a reckless disregard for whether or not the United States would actually be paid. Even though Sibley may have hoped, or even intended, that funds would be available to pay the United States when the first quarter liability matured, his use of the withholding trust funds for other purposes in the interim made him liable for a Section 6672 penalty if the tax was not in fact paid. See Newsome v. United States, supra; Teel v. United States, supra. Both Brown and Sibley assert that all of Sibwin’s funds were proceeds from construction carried on by interim financing; that a criminal statute, LSA-R.S. § 14:202, restricts the use of such funds to payments for labor and materials used in the construction; and that, therefore, their failure to pay withholding taxes was not" }, { "docid": "22871163", "title": "", "text": "that he did not know that withholding taxes were not being paid. He contends that he became president of the corporation through the historical accident that Herold Radio became the parent company when the three constituent companies merged in 1955, that in substance he was only the purchasing agent for the company, and that he had little understanding of financial matters. He also claims that payment of the Corporation’s taxes was handled by others, a not untenable claim since Herold Radio was a fairly large organization, employing 800 workers at its peak. In the district court and in this court the government does not deny Herold's claim, but argues that because of his official capacity he had a duty to know about the arrearage in withholding taxes. A corporate officer acts “willfully” within the meaning of section 6672, the government argues, when he should have known that taxes owed were not paid. We cannot agree. Conduct amounting to no more than negligence is not willful for purposes of § 6672. Dudley v. United States, 428 F.2d 1196, 1200 (9th Cir. 1970). It is, however, not necessary that evil motive or intent to defraud be proven in order to establish willfulness. Monday v. United States, 421 F.2d at 1216; Bloom v. United States, 272 F.2d at 223. Monday defined willful action under § 6672 as “voluntary, conscious and intentional — as opposed to accidental — decisions not to remit funds properly withheld to the Government.” 421 F.2d at 1216. That definition has been widely accepted. Dudley v. United States, 428 F.2d at 1198 n. 3. See e. g., Spivak v. United States, 370 F.2d 612, 615 (2d Cir.), cert,. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967). Monday also points out, as has to be the case, that willful conduct “may also indicate a reckless disregard for obvious or known risks.” 421 F.2d at 1215. Willful conduct also includes failure to investigate or to correct mismanagement after having notice that withholding taxes have not been remitted to the Government. United States v. Leuschner, 336 F.2d 246 (9th Cir." }, { "docid": "3363230", "title": "", "text": "Code of 1954, certain employers are required to withhold federal income and social security taxes from wages of their employees. Once withheld, such taxes are a special trust fund for the United States. When an employer has withheld a tax, but has failed to pay it over to the Government, the employee is credited with having paid the amount to the Government; whenever the Government is unable to collect from an insolvent corporate employer, unless it has recourse against the person responsible for non-payment, the taxes are not recoverable. To protect the public fisc, Congress enacted section 6672 of the code which, in substance, provides that any person who is required to collect, account for and pay over such taxes, is subject to a penalty tax equal to the amount of tax not collected, accounted for or paid over. The Government argues that, even if persons other than Klotz and Howe had taken control of the corporation, both men had sufficient “involvement” or “control” in deciding which creditors should be paid as to bring them within the ambit of section 6672. In short, the Government tries to avoid the impact of the clearly erroneous rule by characterizing the issue as a question of law. The effort is unavailing. Although thtTconcepts of willfulness and responsibility, as used in section 6672, are mixtures of fact and law, the primary ingredient in any particular case is factual. (Dudley v. United States (9th Cir. 1970) 428 F.2d 1196, 1200; United States v.. Leuschner (9th Cir. 1964) 336 F.2d 246; Wilson v. United States (9th Cir. 1958) 250 F.2d 312.) We need not reach the question whether either Howe or Klotz was a “responsible” person within the meaning of the statute because we are convinced that the district court’s finding that neither Klotz nor Howe willfully failed to pay the taxes cannot be disturbed on appeal. “Willfulness” is defined as a “voluntary, conscious and intentional act to prefer other creditors over the United States.” (Sorenson v. United States (9th Cir. 1975) 521 F.2d 325, 328; United States v. Leuschner, supra, 336 F.2d at 247-48; Bloom" }, { "docid": "5409537", "title": "", "text": "fails to collect, truthfully account for, and pay over employment taxes. 10. Thus, Section 6672 provides a two-prong test: Is the individual involved responsible, that is, is he a person who is required to collect, truthfully account for, and pay over the taxes? And, was his failure to perform this duty willful? 11. Plaintiff Abrams has the burden of proving that, with respect to McDowell and Mercer, he was not a responsible officer who willfully failed to collect, truthfully account for and pay over the withholding taxes of the employees. Third-party defendant Leon-forte has the burden of proving that, with respect to McDowell and Mercer, he was not a responsible officer who willfully failed to collect, truthfully account for, and pay over the withholding taxes of the employees. 12. To meet this burden of proof, Abrams and Leonforte must show that they were not responsible for the collection and payment of the taxes or that their failure to pay the funds over to the Government was not willful within the meaning of 26 U.S.C. Section 6672. United States v. Molitor, 337 F.2d 917 (C.A. 9, 1964). 13. Persons subject to liability under 26 U.S.C. Section 6672 are those individuals who have both the power and the responsibility within the corporate structure for assuring that taxes are withheld and properly paid over to the Government. Although corporate office alone does not create the statutory duty, it is not necessary to be the disbursing officer before a duty to collect and pay over attaches. The duty to collect, account for, and pay over taxes “is generally found in high corporate officials charged with general control over corporate business affairs who participate in decisions concerning payment of creditors and disbursal of funds.” Monday v. United States, 421 F.2d 1210, 1214 (C.A. 7, 1970) cert. denied 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). Accord, Bloom v. United States, 272 F.2d 215 (C.A. 9, 1959), cert. denied, 363 U. S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960); Hewitt v. United States, 377 F.2d 921, 924 (C.A. 5, 1967); Scott v. United" }, { "docid": "23034455", "title": "", "text": "has cheek-signing authority. Id. at 939; see also Hochstein, 900 F.2d at 547; Barnett v. IRS, 988 F.2d 1449, 1455 (5th Cir.), cert. denied, — U.S.—, 114 S.Ct. 546, 126 L.Ed.2d 448 (1993); Bowlen v. United States, 956 F.2d 723, 728 (7th Cir.1992). Thus, though § 6672(a) “is not meant to ensnare those who have merely technical authority or titular designation,” Fiataruolo, 8 F,3d at 939, the section encompasses “‘all those connected closely enough with the business to prevent the [tax] default from occurring,’ ” id. (quoting Bowlen v. United States, 956 F.2d at 728). Even if an individual is found to be a responsible person within the meaning of § 6672(a), the section imposes no liability on him unless his failure to collect, account for, or remit the withholding taxes was “will ful[ ].” To be willful, conduct need not stem from an “evil motive or intent to defraud,” Kalb v. United States, 505 F.2d 506, 511 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); but it must amount to more than negligence, see id. The principal component of willfulness is knowledge: a responsible person acted willfully within the meaning of § 6672(a) if he (a) knew of the company’s obligation to pay withholding taxes, and (b) knew that company funds were being used for other purposes instead. See, e.g., Hochstein, 900 F.2d at 548; United States v. Running, 7 F.3d 1293, 1298 (7th Cir.1993) (“a responsible person acts willfully when he permits funds of the corporation to be paid to other creditors when he is aware that withholding taxes due to the government have not been paid”). Thus, failures were “willful[]” within the meaning of § 6672(a) if they were “ “voluntary, conscious and intentional — as opposed to accidental — decisions not to remit funds properly withheld to the Government.’ ” Kalb v. United States, 505 F.2d at 511 (quoting Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970)). If the responsible person had the requisite knowledge, even" }, { "docid": "15577445", "title": "", "text": "the person responsible for the collection and payment of withholding taxes; and (2) he must willfully fail to collect and pay over said taxes. Teele v. United States, 529 F.2d 903, 905 (CA 9 1976); Pacific National Insurance v. United States, 422 F.2d 26, 29 (CA 9 1970); Taubman v. United States, 499 F.Supp. 1133, 1137 (ED Mich.1978). Section 6671(b) of the Internal Revenue Code of 1954, 26 U.S.C. § 6671(b), defines the word “person” thusly: (b) Person defined.—The term “person”, as used in this subchapter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs. Certainly, pursuant to the above definition, responsibility for the collection and payment of withholding taxes can attach to corporate officers. However, such a result is not automatic. It is well established that the test for determining the responsibility of the corporate officer under § 6672 is essentially a functional one, focusing upon the degree of influence and control which the officer exercised over the financial affairs of the corporation and, specifically, disbursements of funds and the priority of payments to creditors. In Monday v. United States, 421 F.2d 1210, 1214-1215 (CA 7 1970), the Seventh Circuit Court of Appeals, defining the contours of the test, stated: Corporate office does not, per se, impose the duty to collect, account for and pay over the withheld taxes. On the other hand, an officer may have such a duty even though he is not the disbursing officer. Cf. Bloom v. United States, 272 F.2d 215 (9th Cir.1959), certiorari denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146. The existence of the same duty and concomitant liability in another official likewise has no effect on the taxpayer’s responsibility. Datlof v. United States, 252 F.Supp. 11, 33 (E.D.Pa.1966), affirmed, 370 F.2d 655 (3d Cir.1966), certiorari denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 624. Liability attaches to those with power and responsibility within the corporate structure for seeing that" }, { "docid": "22044761", "title": "", "text": "no change in control, however, responsible persons are subject to a duty to apply any available unencumbered funds to reduction of accrued withholding tax liability, whether or not those funds are deemed to be trust funds within the meaning of § 7501. See Maggy v. United States, 9 Cir. 1977, 560 F.2d 1372, 1376, and Teel v. United States, 9 Cir. 1976, 529 F.2d 903, 905. Although both Maggy and Teel stated that such funds are held in trust, this was unnecessary to the results reached in those cases. Furthermore, although those cases antedate Slodov, nothing in those opinions restrict their continued applicability. In fact, Slodov implicitly affirms their conclusions because the Court assumes at the outset that a penalty may be exacted from a person who was responsible both during the period withholding tax liability accrued and thereafter. 436 U.S. at 244-45, 98 S.Ct. at 1784, 56 L.Ed.2d at 260-61. The Court also specifically limited its holding to funds acquired after the responsible person’s “accession to control.” 436 U.S. at 258-59, 98 S.Ct. at 1791, 56 L.Ed.2d at 269. At no point does Slodov reach the need to define the meaning of the term “willfully” with respect to individuals who were responsible persons both before and after withholding tax liability accrued. The term “willfully” is defined by prior cases as meaning, in general, a voluntary, conscious, and intentional act, such as payment of other creditors in preference to the United States, although bad motive or evil intent need not be shown. Liddon v. United States, 5 Cir. 1971, 448 F.2d 509, 513, cert. denied, 1972, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; Monday v. United States, 7 Cir. 1970, 421 F.2d 1210, 1216, cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48; Hewitt v. United States, 5 Cir. 1967, 377 F.2d 921, 924. The willfulness requirement is satisfied if the responsible person acts with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the Government, see Teel v. United States, supra, and Monday v. United States, supra," }, { "docid": "22871164", "title": "", "text": "F.2d 1196, 1200 (9th Cir. 1970). It is, however, not necessary that evil motive or intent to defraud be proven in order to establish willfulness. Monday v. United States, 421 F.2d at 1216; Bloom v. United States, 272 F.2d at 223. Monday defined willful action under § 6672 as “voluntary, conscious and intentional — as opposed to accidental — decisions not to remit funds properly withheld to the Government.” 421 F.2d at 1216. That definition has been widely accepted. Dudley v. United States, 428 F.2d at 1198 n. 3. See e. g., Spivak v. United States, 370 F.2d 612, 615 (2d Cir.), cert,. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967). Monday also points out, as has to be the case, that willful conduct “may also indicate a reckless disregard for obvious or known risks.” 421 F.2d at 1215. Willful conduct also includes failure to investigate or to correct mismanagement after having notice that withholding taxes have not been remitted to the Government. United States v. Leuschner, 336 F.2d 246 (9th Cir. 1964); Dougherty v. United States, 327 F.Supp. 202 (D.S.D.1971), aff’d without opinion, 471 F.2d 656 (8th Cir. 1972). See Burack v. United States, 461 F.2d 1282, 198 Ct.Cl. 855 (1972). This case must therefore be remanded for determination of whether Herold, a responsible person under § 6672, “willfully” failed to see to it that the withheld taxes were paid over to the rightful payee, the Internal Revenue Service. . The statute provides : “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable.” . The" }, { "docid": "22963327", "title": "", "text": "courts of appeals presented with the like claim. Davis’s, theory, moreover, .would reward responsible corporate officers for their ignorance and force the federal government to subsidize management efforts to revive private corporations. A. Definition of Willfulness Willfulness, within the meaning of section 6672, has been defined as a “ ‘voluntary, conscious and intentional act to prefer other creditors over the United States.’ ” Klotz v. United States, 602 F.2d 920, 923 (9th Cir.1979) (quoting Sorenson v. United States, 521 F.2d 325, 328 (9th Cir.1975)); see also Maggy, 560 F.2d at 1375; Teel v. United States, 529 F.2d 903, 905 (9th Cir.1976). An intent to defraud the government or other bad motive need not be proven. Klotz, 602 F.2d at 923. In fact, conduct motivated by a reasonable cause may nonetheless be willful. Barnett v. United States, 594 F.2d 219, 221 (9th Cir.1979). Davis’s deliberate decision to use corporate revenues received after July 1982 (when Davis first became aware of the delinquency) to pay commercial creditors rather than to diminish ITAC’s tax debt falls within the literal terms of this Circuit’s definition of willfulness. The payments were a “voluntary, conscious and intentional act to prefer other creditors over the United States.” Klotz, 602 F.2d at 923 (quotation omitted). Indeed, Davis admits that ITAC received sufficient income to satisfy in full its tax delinquency had those funds not been diverted to satisfy other corporate debts. B. The Slodov Decision Davis argues that his actions fall within the exception to section 6672 liability carved out by the Supreme Court in Slodov. The Supreme Court held in Slodov that, if new management of a corporation assumes control when a delinquency for trust fund taxes already exists and the withheld taxes have already been dissipated by prior management, the new management’s use of after-acquired revenues to satisfy creditors other than the United States does not make it personally liable for a section 6672 penalty. 436 U.S. at 259-60, 98 S.Ct. at 1791-92. Mr. Slodov purchased the stock and assumed management of three corporations on January 31, 1969. At that time, the corporations owed $250,000 in" }, { "docid": "23574471", "title": "", "text": "the Court specifically stated that an officer or employee need not be responsible for the payment of withholding taxes at the end of the quarter in order to be a responsible person for that quarter; it noted that otherwise “the penalties easily could be evaded by changes in officials’ responsibilities prior to the expiration of any quarter.” 436 U.S. at 247, 98 S.Ct. at 1785, 56 L.Ed.2d at 261-62. The district court’s conclusion that Sibley was a responsible person is also correct because he was under a duty to pay over withholding taxes to the government through deposits of withholding trust funds during the first quarter. III. A responsible person is liable for a § 6672 penalty only if he “willfully” fails to ensure that withholding taxes are paid. A voluntary, conscious, and intentional act, such as the payment of other creditors in preference to the United States, constitutes “willfulness.” E. g., Liddon v. United States, 5 Cir. 1971, 448 F.2d 509, 513, cert. denied, 1972, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; Hewitt v. United States, 5 Cir. 1967, 377 F.2d 921, 924. The responsible person also acts willfully if he proceeds with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the government. See, e. g., Teel v. United States, 9 Cir. 1976, 529 F.2d 903, 905; Newsome v. United States, 5 Cir. 1970, 431 F.2d 742, 746; Monday v. United States, 7 Cir. 1970, 421 F.2d 1210, 1216, cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48. The burden of proving lack of willfulness is on the taxpayer. E. g., Anderson v. United States, 8 Cir. 1977, 561 F.2d 162, 165; Liddon v. United States, supra. Sibley argues that he did not “willfully” fail to pay withholding taxes because, at the time the taxes became payable, he was no longer in a position to pay the taxes, and he did all he possibly could do to alert Brown to the necessity of paying the taxes. However, as we have already pointed out, Treasury regulations require" }, { "docid": "22120927", "title": "", "text": "he did not willfully fail to pay the taxes. Calderone concedes that he is a responsible party. A failure to pay over taxes is willful, for section 6672 purposes, if it is voluntary, knowing and intentional even though it is not done with a bad purpose or an evil motive____ One who pays other creditors, rather than pay withholding taxes to the government, is liable for a willful failure to pay such taxes____ Barnett v. United States, 594 F.2d 219, 222 (9th Cir.1979) (citations omitted); accord McGlothin v. United States, 720 F.2d 6, 9 (6th Cir.1983); Braden v. United States, 442 F.2d 342, 344 (6th Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971). The government presented evidence that during the relevant period, Calderone wrote some forty corporate checks to creditors while no payments were made on the social security taxes. In addition, Horn-baker deposed that Calderone requested that he sign a corporate check on April 18, 1975, made out to Calderone in the amount of $49,069.97, for payment on a lease of property from Calderone to the corporation. However, Calderone has asserted that the evidence demonstrates that prior to August 1, 1975, he had no knowledge the withholding taxes were not being paid. The parties dispute whether it must be shown that the responsible party has actual knowledge of the nonpayment or whether willfulness also exists where a responsible person pays other creditors with a reckless disregard as to whether the trust fund taxes have been paid over to the government. There is authority to support the latter position, advanced by the government. In Teel v. United States, 529 F.2d 903 (9th Cir.1976), the court adopted the reasoning of the Second Circuit in Kalb v. United States, 505 F.2d 506 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975), that “for nonpayment to be willful there must be either knowledge of nonpayment or reckless disregard of whether the payments were being made.” 529 F.2d at 905 (emphasis added). As the Court of Claims has stated: More than mere negligence is" }, { "docid": "946130", "title": "", "text": "held that the party assessed with the penalty must meet two requirements. He must be a “responsible person”: one who is required “to collect, truthfully account for, and pay over” the tax. And he must willfully refuse to pay it. Teel v. United States, 529 F.2d 903, 905 (9th Cir. 1976). The district court found that at all times relevant to the case, Maggy was aware that taxes were being withheld from the employees’ wages; was aware that these amounts were due to the United States; was a responsible person within the ambit of section 6672 with the power to pay these taxes; and had made no attempt to pay the taxes due on July 31 for the preceding quarter. In addition, the court found that from April to December, 1967, when Edmap ceased doing business, Maggy was aware that creditors of Edmap were paid in preference to the United States, and that he was an active participant in the failure to pay the withheld taxes to the United States. Maggy essentially argues on appeal that his position at Edmap was totally meaningless after June 22, and that since there were sufficient funds in the Edmap account on that date to pay the taxes when accrued, he should not be held liable for the fact that the account was deficient on July 31. A “responsible person” subject to the reach of 26 U.S.C. § 6672 is one who has the final word on which bill should or should not be paid. Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). The district court found Maggy to be a responsible person for the entire quarter because he remained chairman of the board of directors and a signator on Edmap’s accounts until July 18. Under California law and Edmap’s by-laws, the board of directors had ultimate control over all aspects of the corporation and its personnel. Additionally, the district court found that it was contrary to California law for the board of directors to totally abdicate all financial responsibility" }, { "docid": "23573491", "title": "", "text": "15, 1960, and it was adjudicated a bankrupt on November 27, 1961. The IRS filed a claim in bankruptcy for the taxes due, but received no payment. In 1964, the IRS assessed penalties in the amount of the taxes due against appellant as the person who was required to pay over the taxes but who willfully failed to do so, pursuant to 26 U.S.C. § 6672. Appellant brought suit in the District Court for a refund of monies seized from him by the IRS in partial satisfaction of that assessment. His grounds were that he did not “willfully” fail to pay over the tax and that he was not the “person” required to pay over the tax. Following non-jury trial, the District Court found that appellant was the person responsible for the payment of the taxes in question and that his failure to do so was intentiorial and willful within the meaning of the statute. We disagree. This circuit has defined willfulness as used in Section 6672 to mean the “voluntary, conscious, and intentional act to prefer other creditors of the corporation over the United States.” There need not be present an evil motive or intent to defraud the United States. Bloom v. United States, 272 F.2d 215, 223 (9th Cir. 1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). See also Turner v. United States, 423 F.2d 448, 450 (9th Cir. 1970); Pacific National Ins. Co. v. United States, 422 F.2d 26, 33 (9th Cir. 1970); United States v. Leuschner, 336 F.2d 246, 247-248 (9th Cir. 1964). We fail to find that appellant Dudley willfully or intentionally preferred other creditors over the United States. On May 1 or 2, 1960, he sent a check to the Internal Revenue Service in the amount of the corporation's withholding tax due for the first calendar quarter of 1960. This check was received by IRS but for some reason never satisfactorily explained it was not presented to the bank for payment until on or about June 10, 1960. (R.T. 624-625). It was then dishonored by the drawee bank and" }, { "docid": "20053865", "title": "", "text": "have “ ‘the final word as to what bills should or should not be paid, and when.’ ” (Pacific National Insurance Company v. United States (9th Cir. 1970) 422 F.2d 26 quoting Wilson v. United States (9th Cir. 1958) 250 F.2d 312, 316; United States v. Graham (9th Cir. 1962) 309 F.2d 210.) In this context “final” means significant, rather than exclusive control. Section 6672 “was designed to cut through the shield of organizational form and impose liability upon those actually responsible for an employer’s failure to withhold and pay over the tax. It would frustrate this purpose needlessly to imply a condition limiting the application of the section to those nominally charged with controlling disbursements of a corporate employer, thus immunizing those who, through agreement with or default of those nominally responsible, have exercised this corporate function in fact.” (Pacific National Insurance Co. v. United States, supra,, 422 F.2d at 31.) Liability may be thus imposed on more than one person. (Scott v. United States (1965) 354 F.2d 292, 173 Ct.Cl. 650.) In a civil action based upon a statute intended to “insure payment to the United States of a tax already collected or deducted by an employer, whose employees have already received credit for the withheld taxes in their individual returns,” rather than a criminal action, willfulness is merely the “voluntary, conscious, and intentional act to prefer other creditors * * * over the United States.” (Bloom v. United States (9th Cir. 1959) 272 F.2d 215, 223, cert. denied (1960) 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146.) Turner testified on deposition that, although he was aware that the Company owed withholding taxes, he did not know of the anticipated tax refund, nor did he know that the Mraks intended to use the proceeds from that refund to pay the payroll taxes. Rather, he said that he would have been “surprised” to learn that the Mraks had not set aside funds with which to pay the taxes. He testified that when creditors of the Company would contact him about their bills, “I wasn’t at the throttle, that" }, { "docid": "19861116", "title": "", "text": "which provide: “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, , or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is'applicable.” Basically, there are two elements composing the liability imposed under § 6672. The “person” must be a “responsible officer” and the attempt to defeat or evade the tax must be “willful.” This court in Spivak v. United States, 254 F.Supp. 517 (S.D.N.Y.1966), aff’d 370 F.2d 612 (2d Cir. 1967), cert. den. 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 adopted “* * * the definition of ‘willful’ contained in Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), cert. denied 363 U.S. 803, 80 S.Ct. 1236, 4 L. Ed.2d 1146 (1960), a case under the predecessor of present Sections 6672 and 6671 (b). It was there said: “ ‘ * * * In our view there need not be present an intent to defraud or deprive the United States of the taxes collected or withheld for its account, nor need bad motives be present in order to invoke the sanctions of [the predecessor of Section 6672]. The decision of appellant as the responsible officer of the corporation not to have the corporation pay over to the government the withheld taxes was a voluntary, conscious and intentional act to prefer other creditors of the corporation over the United States. In our view such conduct was willful within the meaning of [the predecessor of Section 6672]. * * * ’ Bloom v. United States, 272 F.2d at 223. This test was approved in this circuit in Horwitz v. United States, 339 F.2d 877 (2nd Cir. 1965), affirming per" }, { "docid": "22044762", "title": "", "text": "1791, 56 L.Ed.2d at 269. At no point does Slodov reach the need to define the meaning of the term “willfully” with respect to individuals who were responsible persons both before and after withholding tax liability accrued. The term “willfully” is defined by prior cases as meaning, in general, a voluntary, conscious, and intentional act, such as payment of other creditors in preference to the United States, although bad motive or evil intent need not be shown. Liddon v. United States, 5 Cir. 1971, 448 F.2d 509, 513, cert. denied, 1972, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; Monday v. United States, 7 Cir. 1970, 421 F.2d 1210, 1216, cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48; Hewitt v. United States, 5 Cir. 1967, 377 F.2d 921, 924. The willfulness requirement is satisfied if the responsible person acts with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the Government, see Teel v. United States, supra, and Monday v. United States, supra, 421 F.2d at 1215, such as by failing to investigate or to correct mismanagement after being notified that withholding taxes have not been duly remitted. Kalb v. United States, 2 Cir. 1974, 505 F.2d 506, 511, cert. denied, 1975, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471; United States v. Leuschner, 9 Cir. 1964, 336 F.2d 246, 248. Although the Fifth Circuit recognizes that reasonable cause may excuse the failure to collect, account for, or pay over withholding taxes, see Newsome v. United States, 5 Cir. 1970, 431 F.2d 742, 746, the mere delegation of responsibility to another does not constitute reasonable cause. Moreover, once an assessment of penalty taxes is made and it is established that the taxpayer is a responsible person, the burden of proving lack of willfulness is on the taxpayer. E. g., Anderson v. United States, 8 Cir. 1977, 561 F.2d 162, 165; Liddon v. United States, supra, 448 F.2d at 513-14. II. Each of the appellants, save Moore, was an officer, director and stockholder of Savannah, a business corporation," } ]

[ { "docid": "9465950", "title": "", "text": "Rule 6(e) will not affect the grand jury’s decision to indict. Therefore, even if appellants were convicted at trial, Mechanik would not preclude post-trial review of the issue they sought to raise on appeal. More recently, the First Circuit has developed yet another perspective on the ap-pealability issue. In United States v. LaRouche Campaign, 829 F.2d 250, the court denied interlocutory review of a district court’s denial of a motion to dismiss the indictment for violation of Rule 6(e). The court agreed with the Tenth Circuit in Taylor that Mechanik would not necessarily preclude relief after conviction, because the alleged grand jury abuses (violation of secrecy rules, presentation of misleading evidence, the government’s trying the case in the press) were different from the somewhat “technical” violations present in Me-chanik. Id. at 253. The court went on to decide, however, that even if Mechanik should be broadly construed so that post-conviction relief for violations of Rule 6 is routinely denied, interlocutory review would nevertheless be foreclosed. The court noted that, under Cohen, interlocutory review is permitted only if an order finally determines claims of right “too important to be denied review.” Id. at 254 (citing Cohen, 337 U.S. at 546, 69 S.Ct. at 1225) (emphasis in LaRouche). Reasoning that “it would be the rare alleged abuse of the grand jury process which, while not important enough to warrant relief on direct appeal from a judgment of conviction, would be important enough to warrant the extraordinary step of an interlocutory appeal in a criminal case,” the court dismissed the appeal. Id. The case law noted above suggests a number of different approaches to the ap-pealability issue now before us. On the one hand, we could choose to adopt the Ninth Circuit’s broad reading of Mechanik, and hold that Judge Curtin’s December 18 order denying the Rule 6(e) motion to dismiss is effectively unreviewable after trial; this might suggest that interlocutory review would be appropriate. On the other hand, we could choose to follow the First Circuit’s reasoning and hold that, even if there can be no appeal from such an order following" } ]

[ { "docid": "13420101", "title": "", "text": "she is convicted. The motion, of course, becomes moot if she is acquitted. Hence, the trial court’s order did not “conclusively determine the disputed question” because that court has not held a hearing to address the merits of defendant’s allegations, and could rule in her favor after a trial. See Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2457; Cohen, 337 U.S. at 547, 69 S.Ct. at 1226. Nor does the order meet the third collateral exception requirement that it “be effectively unreviewable on appeal from a final judgment,” as Helmsley contends. In support of this argument, defendant points out that the Supreme Court has granted certiorari in United States v. Midland Asphalt, 840 F.2d 1040 (2d Cir.), cert. granted, Midland Asphalt Corp. v. United States, — U.S. —, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988). In Midland Asphalt, we held that the Supreme Court’s decision in United States v. Mechanik did not preclude “a federal court of appeals from exercising post-trial review” of alleged violations of Fed.R.Crim.P. 6(e). 840 F.2d at 1046. Helmsley posits that if Midland Asphalt is reversed — and if the Supreme Court extends United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) (denying post-conviction review of alleged 6(d) violation because violation, if any, was found to be harmless because of a “supervening jury verdict”) — she would then be unable to obtain any post-conviction review of the alleged grand jury-related improprieties. As a reason for fitting the instant order within the collateral order exception, this parade of horribles is too remote and speculative to be persuasive. Defendant has cited no authority for the proposition that the third prong of the Cohen exception is satisfied by potential unreviewability. And, such a proposition is plainly untenable because it has no limiting principle. Further, because there is no way to know how the Supreme Court, will rule in Midland Asphalt, we must apply the law as it exists at the time of this writing. Examining that law satisfies us that defendant may raise her allegations of grand jury abuse of process" }, { "docid": "2506724", "title": "", "text": "it if we failed to apply its harmless error doctrine to appellants’ claims after final judgment. Certainly the harmless error analysis that we have already quoted above would apply; the grand jury’s reasonable cause determination would have been mooted by conviction upon a finding of guilt beyond a reasonable doubt. In addition, much of the emphasis of the Mechanik majority opinion is on the societal costs of retrial, including loss of witness’ memory or availability, the possibility that the offender may escape retrial altogether, and delay in the administration of justice that may impede deterrence and rehabilitation. Id. at 942-43. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. ... In such a case, the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings. Id. at 943. We fail to see how this language could be considered inapplicable to the present contentions of appellants if they were raised after trial and conviction. Two other Circuits have applied Mechanik ’s harmless error analysis to allegations of grand jury irregularities other than violations of Rule 6(d). In Porter v. Wainwright, 805 F.2d 930, 941-42 (11th Cir. 1986), the Eleventh Circuit applied Mechanik ’s harmless error rule to a claim of grand juror bias, brought on appeal after trial and conviction. The Seventh Circuit did the same with a claim of alleged prosecutor misconduct before the grand jury in United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.1986). We conclude, therefore, that the effect of Mechanik is to render appellants’ claims effectively unreviewable after trial. See Mechanik, 106 S.Ct. at 943 (concurring opinion of Justice O’Connor). Appellants’ interlocutory appeal consequently satisfies the third Cohen requirement. See id. at 947 n." }, { "docid": "12592316", "title": "", "text": "in United States v. Taylor, 798 F.2d 1337 (10th Cir. 1986). In Mechanik, the defendants moved before the verdict for dismissal of the indictment on the ground that the simultaneous presence and examination of two Government agents had violated Fed.R. Crim.P. 6(d) (i.e., unauthorized presence before the grand jury). 475 U.S. at-, 106 S.Ct. at 940. The district judge took the motion under advisement until the conclusion of the trial, when he denied it. Id. at ---, 106 S.Ct. at 940-42. The Fourth Circuit reversed in part, dismissing one count of the indictment using a per se dismissal rule. The Supreme Court reversed in part, holding that “[mjeasured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Id. at-, 106 S.Ct. at 942 (footnote omitted). Moreover, the Court held: [HJowever diligent the defendants may have been in seeking to discover the basis for the claimed violation of Rule 6(d), the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation. In such a case, the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings. Id. at-, 106 S.Ct. at 943. In Taylor we distinguished between technical errors like those addressed in Mechanik and errors which adversely threaten a defendant’s right to fundamental fairness in the criminal process. The former category of error falls within the rule announced in Mechanik, while the later category of error is not rendered moot by a petit jury’s determination of guilt. See Taylor, 798 F.2d at 1340. In light of Mechanik and the analysis in our Taylor and Pino opinions, we conclude that consideration of dismissal of an indictment because of prosecutorial misconduct before a grand jury calls for weighing several factors. First, a reviewing court must determine whether the claimed errors should be characterized as technical or procedural and affecting only the probable cause charging decision by the" }, { "docid": "22937541", "title": "", "text": "Id. at 70, 106 S.Ct. at 941. Further, the Court reasoned that the societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has no effect on the outcome of the trial. Id. at 72, 106 S.Ct. at 943. Since Mechanik the federal courts of appeal have struggled to define what non-trial errors remain reviewable after a defendant has been convicted. For a brief period there burned brightly the prospect of utilizing interlocutory appeals to vindicate claims that arguably would be barred from post-conviction review by Mechanik. See United States v. Benjamin, 812 F.2d 548, 550-54 (9th Cir.1987). This prospect was extinguished by Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989). Interlocutory appeals in criminal proceedings were severely limited. While Mechanik and Midland Asphalt considered together seem clear enough, this clarity is diminished when Bank of Nova Scotia v. United States, — U.S. -, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), is added to the mix. Uncertainty arises because Bank of Nova Scotia can be read as requiring appellate courts in reviewing convictions to assess claims of prosecutorial misconduct in the grand jury proceedings by the standard Justice O’Con-nor employed in her concurring opinion in Mechanik. That is, “dismissal of the indictment is appropriate only ‘if it is established that the violation substantially influenced the grand jury’s decision to indict’ or if there is ‘grave doubt’ that the decision to indict was free from substantial influence of such violations.” Bank of Nova Scotia, 108 S.Ct. at 2374 (quoting Mechanik, 475 U.S. at 78, 106 S.Ct. at 945 (O’Connor, J., concurring)). This standard, however, was explicitly rejected by Mechanik. See 475 U.S. at 71, 73, 106 S.Ct. at 942, 943. It is, of course, possible to read Bank of Nova Scotia as applicable only to situations in which prosecutorial abuse of grand jury proceedings" }, { "docid": "23675376", "title": "", "text": "to a tainted portion of the indictment. Although the Court assumed arguendo that the joint testimony of the witnesses did violate Rule 6(d), it refused to reverse the conviction. The Court held that the guilty verdict rendered by the petit jury established beyond a reasonable doubt not only that probable cause to charge did exist but that the defendants were guilty as charged: “Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” 106 S.Ct. at 942 (footnote omitted). The Court reasoned that a reversal would entail substantial social costs which were simply unacceptable given the curative effect of the petit jury’s verdict: These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair detemination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. 106 S.Ct. at 943. In United States v. Larouche Campaign, 829 F.2d 250 (1st Cir.1987), this court had occasion to consider the parameters of Mechanik. The defendants in La-rouche had been charged, inter alia, with credit card fraud. Defendants filed an interlocutory appeal to challenge alleged improprieties in prosecutorial conduct before the grand jury, claiming that such conduct undermined the impartiality of the jury in violation of the fifth amendment. Although the actual holding of the case rested on jurisdictional grounds, we did consider the presumptive bar of Mechanik. We found that the assertion of a violation of fundamental fairness might distinguish the defendants’ claim from that considered and dismissed by Mechanik: [I]t is not a foregone conclusion beyond debate that if the abuse defendants claim were established, Mechanik would preclude relief after a judgment of conviction. The grand jury abuses alleged in the present case ... are different from the somewhat technical violation at issue in Mechanik. Consequently, the balancing of the societal costs of retrial against the societal interest in deterring" }, { "docid": "18719290", "title": "", "text": "prosecution into the defense camp. Defendants have appealed, requesting a remand with an order to dismiss the indictment, or with an order requiring the government to disclose all grand jury testimony, a hearing on the issue of prosecutorial misconduct, a suppression hearing, and an order disqualifying persons having knowledge of privileged communications from participation in the trial. Finally, defendants request, as an alternative remedy, an order in the nature of mandamus or prohibition to “correct the clear and gross abuse of discretion by the lower court in failing to dismiss the indictment or suppress any evidence based upon the governmental intrusion into the defense camp.” I. The government contends that the issues • raised are not ripe for appeal because the order denying the motion to dismiss is not a final judgment. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The government further contends the case does not fall within the “collateral order” exception created by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and followed in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). It is argued that the issues raised here are neither collateral to nor separable from the principal issue of guilt as was the double jeopardy issue raised in Abney. See also United States v. Claiborne, 727 F.2d 842 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984). The order appealed from in this case unquestionably falls outside Abney and Cohen. United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). Thus, the only question we must decide is whether an additional exception to the final judgment rule has arisen from Mechanik, like Athena from the head of Zeus. Mechanik, a postjudgment appeal, raised the issue of whether violation of Fed.R.Crim.P. 6(d) is a basis for dismissal of an indictment. Contrary to the single-witness limitation of Rule 6(d), two witnesses appeared together before the Mechanik grand jury. Despite a prior court of appeals holding" }, { "docid": "23043231", "title": "", "text": "an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. Id. at 72, 106 S.Ct. at 942-43 (emphasis added). Once the district court denies, as Judge Knapp did, a motion to dismiss an indictment based on a violation of Rule 6(e), and the trial thereafter takes place, the “balance of interest” is precisely that faced by the Court in Mechanik. Nevertheless, this case stands on a somewhat different footing than Mechanik, for the quite simple reason that this case involves a violation of Rule 6(e) as opposed to a violation of Rule 6(d). A betrayal of grand jury secrecy, unlike misconduct or error confined to the grand jury room, jeopardizes the defendant’s right to a fair trial before a petit jury. We recognized this distinction recently in United States v. Midland Asphalt Corp., 840 F.2d 1040, 1045-46 (2d Cir.1988), where we held that an order denying a motion to dismiss an indictment was not appealable under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We reached this conclusion because Mechanik by its terms does not bar reversal of a conviction when misconduct before the grand jury “has deprived [the] defendant of a fair determination of the issue of guilt or innocence.” Mechanik, 475 U.S. at 72, 106 S.Ct. at 943; see Midland Asphalt, 840 F.2d at 1046. However, appellants simply cannot show resultant prejudice from the publicity surrounding the grand jury proceedings and make no claim that the Connecticut petit jury was affected by the government’s misconduct. Rather, they assert only that the “illicit publicity about impermissible facts is safely to be supposed, and could undoubtedly have been shown, to have infected the grand jury.” In view of the limited nature of appellants’ claim, we have little doubt that the change of venue, and the use of a Hartford jury pool, along" }, { "docid": "2506719", "title": "", "text": "we quoted In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1039 (3d Cir.1980): [F]lawed grand jury proceedings can be effectively reviewed by this court and remedied after a conviction [has] been entered and all criminal proceedings have been terminated in the district court____ Because delayed appellate review will not irreparably deny Johansen his right to an impartial grand jury (his conviction could be reversed if at a later stage we conclude the grand jury was tainted) the order is not reviewable immediately as a collateral order. Garner, 632 F.2d at 766. Appellants contend, however, that we cannot today deny their interlocutory appeal on the ground that their claim may effectively be reviewed after final judgment. They argue that effective review after conviction has been rendered unavailable by the recent decision of the Supreme Court in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik, the defendants asserted, on appeal after conviction, that an irregularity in the grand jury proceedings rendered their convictions void. Although Fed.R.Crim.P. 6(d) provides that only “the witness under examination” shall be present at grand jury proceedings, two government witnesses had testified in tandem. The defendants did not discover the violation until after trial commenced. Defendants moved for dismissal, but the district court deferred ruling on the motion until the trial’s conclusion. The district court then denied the defendants’ motion. The Fourth Circuit set aside Mechanik’s conspiracy conviction, which had been “tainted” by the Rule 6 violation. A divided Supreme Court reversed. In its majority opinion, the Court assumed that simultaneous presence of the two witnesses violated Rule 6(d) and that the district court might have been justified in dismissing portions of the indictment prior to trial. Mechanik, 106 S.Ct. at 941. The Court held, however, that the supervening jury verdict established that any error in the grand jury proceeding was harmless under Fed.R.Crim.P. Rule 52(a). Therefore, reversal of the conviction and dismissal of the indictment were inappropriate: The error involving Rule 6(d) in these cases had the theoretical potential to affect the grand jury’s determination whether to indict" }, { "docid": "2506723", "title": "", "text": "reason not to apply this provision to ‘errors, defects, irregularities or variances’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Mechanik, 106 S.Ct. at 942 (citation omitted). There is another distinction between this case and Mechanik. The grand jury irregularity in this case was the subject of a motion made and ruled upon before trial. In Mechanik, the irregularity was discovered, and the motion made, after the trial had begun. The majority in Mechanik stated: “We express no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 943 (footnote omitted). This disclaimer means that Mechanik does not automatically apply to our case, involving as it does the denial of a pretrial motion to dismiss. Nevertheless, we are convinced that we would be failing to accord Mechanik the precedential effect that is fairly due it if we failed to apply its harmless error doctrine to appellants’ claims after final judgment. Certainly the harmless error analysis that we have already quoted above would apply; the grand jury’s reasonable cause determination would have been mooted by conviction upon a finding of guilt beyond a reasonable doubt. In addition, much of the emphasis of the Mechanik majority opinion is on the societal costs of retrial, including loss of witness’ memory or availability, the possibility that the offender may escape retrial altogether, and delay in the administration of justice that may impede deterrence and rehabilitation. Id. at 942-43. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. ... In such a case, the societal costs of retrial after a jury verdict of guilty" }, { "docid": "19362797", "title": "", "text": "if an order denying a motion to dismiss an indictment based on a Rule 6(e) violation is theoretically reviewable after conviction, it is “effectively unreviewable” under the Coopers & Lybrand test. See Midland, 109 S.Ct. at 1498. The Court rejected this argument, holding that although the grand jury clause of the fifth amendment confers a right not to be tried when there is no grand jury indictment, not every violation relating to grand jury proceedings gives rise to the right not to be tried. Id. at 1499. The Court concluded that a breach of the secrecy provision of Rule 6(e) is not a sufficiently fundamental defect as to implicate the right not to be tried. Id. Midland Asphalt’s analysis applies equally to Dederich appeals. A claim alleging prosecutorial misconduct in the grand jury charging process is similar to a claim alleging a violation of Rule 6. Both may result in the improvident return of a grand jury indictment. Based on the Supreme Court’s analysis in Midland, we now find that a claim of prosecutorial misconduct, like a Rule 6 claim, does not satisfy the collateral order doctrine. If the Mechanik harmless error does not extend to allegations of prosecutorial misconduct in the grand jury charging process, defendants may raise such a claim after the petit jury renders a guilty verdict. In that case, a Dederich appeal does not meet the third requirement of the collateral order doctrine because the claim is not effectively unreviewable on appeal from the final judgment. Midland Asphalt, 109 S.Ct. at 1498; see also Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2457. Similarly, if Mechanik does preclude review of prosecutorial misconduct claims after conviction, a Dederich appeal does not satisfy the second requirement of the collateral order doctrine — that the appeal must resolve an important issue completely separate from the merits of the action. See Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 24. The purpose of protecting a defendant against prosecutorial misconduct in the charging process is the same as the purpose of protecting against Rule 6(d) violations, namely" }, { "docid": "19362792", "title": "", "text": "challenge the procedures by which the grand jury decided to indict defendants. Accordingly, the defendants’ first five claims support valid Dederich appeals. See Dederich, 825 F.2d at 1320; see also Howard, 867 F.2d at 552. Thus, we next consider whether we have jurisdiction over these appeals in light of the Supreme Court decision in Midland Asphalt. B. Effect of Midland on Dederich Appeals In United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), this court held the denial of a motion to dismiss an indictment based on a violation of Fed.R.Crim.P. 6(e)(2), relating to the secrecy of grand jury proceedings, is reviewable before final judgment under the collateral order doctrine. Dede-rich extended the Benjamin analysis to allegations of prosecutorial misconduct affecting the grand jury charging process. Dederich, 825 F.2d at 1320. In Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 874 (1989), the Supreme Court expressly rejected the reasoning of Benjamin. United States v. Benjamin, — U.S. -, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989) (vacating circuit court opinion). The Court held that an order denying a motion to dismiss an indictment for an alleged Rule 6(e) violation was not immediately appeal-able under the collateral order doctrine. Id. The Court did not discuss interlocutory appeals based on prosecutorial misconduct. Nevertheless, this court has decided that we lack jurisdiction to entertain an appeal of a district court order denying a motion to dismiss an indictment based on alleged prosecutorial misconduct. United States v. Shah, 878 F.2d 272, 275 (9th Cir.1989). Our analysis of Midland further supports this conclusion. In both Benjamin and Dederich, we noted that under the harmless error rule of Mechanik v. United States, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a defendant may not challenge the propriety of the grand jury’s charging process once the pet-it jury renders a guilty verdict. Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 551-53. In Mechanik, the Supreme Court held that an alleged violation of Fed.R. Crim.P. 6(d) was rendered harmless by a petit jury’s verdict. Mechanik only addressed an alleged" }, { "docid": "2506739", "title": "", "text": "424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983)). See United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82, n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958). While one might hypothesize circumstances in which a violation of Rule 6(e) could affect a grand jury’s decision whether to indict, those circumstances are not present in this case. Since they are not, should the appellants be convicted at trial, Mechanik will not preclude post-trial appellate review of the issue appellants seek to raise in this interlocutory appeal. “[T]he petit jury’s verdict [will only render] harmless any conceivable error in the charging decision that might have flowed from the violation.” Mechanik 106 S.Ct. at 943 (emphasis added). The grand jury’s charging decision in this case did not flow from the claimed violation of Rule 6(e) and, therefore, Mechanik is inapposite. The appellants will retain whatever post-conviction right of review they had pre-Mechanik. Accordingly, they should be precluded from raising in this interlocutory appeal their claim that Rule 6(e) was violated. Because of (1) the strong policy against piecemeal appellate adjudication; (2) the view that Mechanik should be narrowly construed (see United States v. Taylor, 798 F.2d 1337, 1340 (10th Cir.1986) (“Mechanik was carefully crafted along very narrow lines, and it has not resulted in another exception to the final judgment rule.”)); and (3) the distinction between a Rule 6(d) violation which affects the grand jury’s decision to indict and a Rule 6(e) violation which may contravene the policy of grand jury secrecy, I respectfully dissent. . As the majority notes, \"Mechanik does not automatically apply to our case” (Majority Opinion at 552). The Mechanik Court stated: “We express no Opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.\" 106 S.Ct. at 943. . See United States v. Taylor, 798 F.2d 1337 (10th Cir.1986), in which the Tenth Circuit held that Mechanik would not preclude post-trial review of claims of" }, { "docid": "2506722", "title": "", "text": "effectively unreviewable. Indeed, the government concedes that a similar application of the harmless error rule to appellants’ claims in this case would render them effectively unreviewable after final judgment. It is true that there are distinctions between this case and Mechanik. Appellants here assert a violation of Rule 6(e)’s prohibition on disclosure of matters occurring before the grand jury, while Mechanik asserted a violation of Rule 6(d). We fail to see how this distinction could cause a difference in result, however. Appellants contend that the improper disclosure was to an interested witness for the purpose of assisting in the grand jury’s investigation. The argument is primarily one of taint, or an improper effect on the grand jury’s decision to indict. Yet any such effect on the grand jury’s probable cause determination will, under the rationale of Mechanik, be rendered harmless if a petit jury finds appellants guilty beyond a reasonable doubt. We would not be free to avoid a harmless error analysis under Federal Rule of Criminal Procedure 52(a) because the Mechanik majority saw “no reason not to apply this provision to ‘errors, defects, irregularities or variances’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Mechanik, 106 S.Ct. at 942 (citation omitted). There is another distinction between this case and Mechanik. The grand jury irregularity in this case was the subject of a motion made and ruled upon before trial. In Mechanik, the irregularity was discovered, and the motion made, after the trial had begun. The majority in Mechanik stated: “We express no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 943 (footnote omitted). This disclaimer means that Mechanik does not automatically apply to our case, involving as it does the denial of a pretrial motion to dismiss. Nevertheless, we are convinced that we would be failing to accord Mechanik the precedential effect that is fairly due" }, { "docid": "23043229", "title": "", "text": "reversal of a defendant’s conviction in the absence of any effect on the outcome of his trial. Mechanik involved alleged violations of Fed.It. Crim. P. 6(d), and the Court assume[d] for the sake of argument that the simultaneous presence and testimony of ... two Government witnesses before the grand jury violated Rule 6(d), and that the District Court would have been justified in dismissing portions of the indictment on that basis had there been actual prejudice and the matter been called to its attention before the commencement of the trial. Id. at 69-70, 106 S.Ct. at 941. Nevertheless, the Court held that “the supervening jury verdict made reversal of the conviction and dismissal of the indictment inappropriate.” Id. at 70, 106 S.Ct. at 941. The Court reasoned that the “petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt.” Id. The Court concluded that “[mjeasured by the petit jury’s verdict ... any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Id. Amicus curiae seeks to distinguish Me-chanik because of the Court’s statement that it “expressed] no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 72, 106 S.Ct. at 943. According to amicus, Me-chanik does not govern here because the government’s misconduct was brought to Judge Knapp’s attention before trial. This argument, however, ignores the underlying justification given in Mechanik. Specifically, the Court stated: The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences.... These societal costs of reversal and retrial are an acceptable and often necessary consequence when" }, { "docid": "19362793", "title": "", "text": "opinion). The Court held that an order denying a motion to dismiss an indictment for an alleged Rule 6(e) violation was not immediately appeal-able under the collateral order doctrine. Id. The Court did not discuss interlocutory appeals based on prosecutorial misconduct. Nevertheless, this court has decided that we lack jurisdiction to entertain an appeal of a district court order denying a motion to dismiss an indictment based on alleged prosecutorial misconduct. United States v. Shah, 878 F.2d 272, 275 (9th Cir.1989). Our analysis of Midland further supports this conclusion. In both Benjamin and Dederich, we noted that under the harmless error rule of Mechanik v. United States, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a defendant may not challenge the propriety of the grand jury’s charging process once the pet-it jury renders a guilty verdict. Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 551-53. In Mechanik, the Supreme Court held that an alleged violation of Fed.R. Crim.P. 6(d) was rendered harmless by a petit jury’s verdict. Mechanik only addressed an alleged violation of Rule 6(d), which limits the number of witnesses who may be present in a grand jury session. The Court did not expressly decide whether the harmless error rule applies to other grand jury errors such as a violation of the secrecy provisions or an allegation of pros-ecutorial misconduct. Nevertheless, both Benjamin and Dederich assumed that the harmless error rule extends beyond Rule 6(d) violations. See Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 553. In Midland, the Supreme Court did not decide whether this court’s broad interpretation of the Mechanik harmless error rule was correct. Instead, the Court held that, regardless of the scope of Mechanik, an appeal from a denial of a motion to dismiss an indictment based on a violation of the Rule 6(e) secrecy provision does not satisfy the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Midland, 109 S.Ct. at 1498. Under Cohen, an appellate court may review a “collateral order” before final judgment if the" }, { "docid": "23043232", "title": "", "text": "held that an order denying a motion to dismiss an indictment was not appealable under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We reached this conclusion because Mechanik by its terms does not bar reversal of a conviction when misconduct before the grand jury “has deprived [the] defendant of a fair determination of the issue of guilt or innocence.” Mechanik, 475 U.S. at 72, 106 S.Ct. at 943; see Midland Asphalt, 840 F.2d at 1046. However, appellants simply cannot show resultant prejudice from the publicity surrounding the grand jury proceedings and make no claim that the Connecticut petit jury was affected by the government’s misconduct. Rather, they assert only that the “illicit publicity about impermissible facts is safely to be supposed, and could undoubtedly have been shown, to have infected the grand jury.” In view of the limited nature of appellants’ claim, we have little doubt that the change of venue, and the use of a Hartford jury pool, along with voir dire, removed any possibility of prejudice at trial. Under Mechanik, therefore, the government’s conduct does not now afford appellants a basis upon which to claim error. CONCLUSION We have examined appellants’ other contentions and have found them to be without merit. Accordingly, for the foregoing reasons, we affirm the convictions of Friedman, Lazar and Shafran on the RICO counts, Counts One and Two, along with Kaplan’s conviction on Count Seven for perjury. We reserve decision on Kaplan’s convictions on Counts One and Two. We vacate the convictions of all appellants on the mail fraud counts, Counts Three, Four, Six, Eight and Nine. . In view of our disposition of the mail fraud counts, see infra Discussion Part G, we need not address Shafran’s claim that the evidence is insufficient to support his conviction on the bribery-related mail fraud counts (Counts Eight and Nine). . The discussion reads as follows: Mr. Schwartz [for the government]: Your Honor, the next thing is on page 44, concerning Mr. Shafran. At the bottom of the page, where" }, { "docid": "22823327", "title": "", "text": "grand jury discrimination in the future.” Mechanik, 475 U.S. at 70 n. 1, 106 S.Ct. at 942 n. 1 (citing Vasquez, 474 U.S. at 262, 106 S.Ct. at 623). However, “these considerations have little force outside the context of racial discrimination in the composition of the grand jury.” Mechanik, 475 U.S. at 70 n. 1, 106 S.Ct. at 942 n. 1. Although there is a substantial social interest in deterring prosecutorial misconduct before the grand jury, “it does not rise to the level of the interest in deterring racial discrimination.” Id. (citations omitted). Moreover, the alleged prosecutorial misconduct before the grand jury did not rise to the level of a constitutional violation. Thus, the societal interest in avoiding the expense of a second trial far outweighs the appellants’ interest in having a new trial based solely on prosecutorial misconduct before the grand jury. As the Supreme Court stated in Mechanik, the societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. Id. at 72, 106 S.Ct. at 943. Markoff also argues that prosecutorial misconduct during his trial violated his Sixth Amendment right to a fair trial. Markoff Br. at 44-46. The conduct challenged by Mar-koff includes: (1) the prosecutor’s failure to provide witness statements to defense counsel, Markoff App. at 139-140, (2) repeated references to matters not in evidence some of which Markoff alleges were inadmissible under Rules 404(b) and 403, id. at 141-143, 152-157, and (3) the statement “Let him take the stand” made by the prosecutor as part of an objection to a question regarding what the witness had heard defendant Curcio say, id. at 144. In evaluating whether the prosecutor’s misconduct rose to the level of constitutional violation, we must examine that conduct in the context of the trial as a whole. Ramseur v. Beyer, 983 F.2d 1215, 1239" }, { "docid": "23043230", "title": "", "text": "verdict ... any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Id. Amicus curiae seeks to distinguish Me-chanik because of the Court’s statement that it “expressed] no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 72, 106 S.Ct. at 943. According to amicus, Me-chanik does not govern here because the government’s misconduct was brought to Judge Knapp’s attention before trial. This argument, however, ignores the underlying justification given in Mechanik. Specifically, the Court stated: The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences.... These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. Id. at 72, 106 S.Ct. at 942-43 (emphasis added). Once the district court denies, as Judge Knapp did, a motion to dismiss an indictment based on a violation of Rule 6(e), and the trial thereafter takes place, the “balance of interest” is precisely that faced by the Court in Mechanik. Nevertheless, this case stands on a somewhat different footing than Mechanik, for the quite simple reason that this case involves a violation of Rule 6(e) as opposed to a violation of Rule 6(d). A betrayal of grand jury secrecy, unlike misconduct or error confined to the grand jury room, jeopardizes the defendant’s right to a fair trial before a petit jury. We recognized this distinction recently in United States v. Midland Asphalt Corp., 840 F.2d 1040, 1045-46 (2d Cir.1988), where we" }, { "docid": "22937540", "title": "", "text": "should be reviewed de novo. See id. at 1202-03. The court noted, however, that de novo review is inappropriate (1) for deciding whether “established facts constitute negligence,” and (2) for deciding questions “in which the applicable legal standard provides for a strictly factual test.” Id. at 1204. Neither exception is applicable here; therefore, we shall employ a de novo standard of review. 2. United States v. Mechanik The government argues that any prose-cutorial misconduct became harmless after Spillone’s conviction, citing United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). Mechanik appealed his conviction, arguing that the district court erred in denying his motion to dismiss the indictment. He argued that the government violated Fed.R.Crim.P. 6(d) by allowing two witnesses to testify simultaneously before the grand jury. The Supreme Court held that any error became harmless when the defendant was convicted by a jury. Rule 6(d), the Court reasoned, was designed to insure that there is probable cause to indict, but the petit jury’s verdict had demonstrated that probable cause existed. Id. at 70, 106 S.Ct. at 941. Further, the Court reasoned that the societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has no effect on the outcome of the trial. Id. at 72, 106 S.Ct. at 943. Since Mechanik the federal courts of appeal have struggled to define what non-trial errors remain reviewable after a defendant has been convicted. For a brief period there burned brightly the prospect of utilizing interlocutory appeals to vindicate claims that arguably would be barred from post-conviction review by Mechanik. See United States v. Benjamin, 812 F.2d 548, 550-54 (9th Cir.1987). This prospect was extinguished by Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989). Interlocutory appeals in criminal proceedings were severely limited. While Mechanik and Midland Asphalt considered together seem clear" }, { "docid": "19362794", "title": "", "text": "violation of Rule 6(d), which limits the number of witnesses who may be present in a grand jury session. The Court did not expressly decide whether the harmless error rule applies to other grand jury errors such as a violation of the secrecy provisions or an allegation of pros-ecutorial misconduct. Nevertheless, both Benjamin and Dederich assumed that the harmless error rule extends beyond Rule 6(d) violations. See Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 553. In Midland, the Supreme Court did not decide whether this court’s broad interpretation of the Mechanik harmless error rule was correct. Instead, the Court held that, regardless of the scope of Mechanik, an appeal from a denial of a motion to dismiss an indictment based on a violation of the Rule 6(e) secrecy provision does not satisfy the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Midland, 109 S.Ct. at 1498. Under Cohen, an appellate court may review a “collateral order” before final judgment if the order: (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from the final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). The Court reasoned that if the Mechanik harmless error rule does not extend beyond violations of Rule 6(d), then a defendant can raise an alleged Rule 6(e) violation on appeal from the conviction. Hence, such a violation is not “effectively unreviewable on appeal from a final judgment.” Midland, 109 S.Ct. at 1498, citing Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2457. If, on the other hand, Mechanik does apply to Rule 6(e) violations, “it will be because the purpose of that Rule is the same as the purpose of Rule 6(d), namely to ‘protec[t] against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty.’ ” Id., citing Mechanik, 475" } ]

[ { "docid": "22674629", "title": "", "text": "an adequate factual basis for the plea existed. Third, DeFusco argues that his plea was not knowing or voluntary because of the ineffective assistance of counsel. We will address each issue in turn. II. Prior to accepting a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty and various rights. Fed.R.Crim.P. 11(c)(1). In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant. “The manner of ensuring that the defendant is properly informed is committed to the good judgment of the district court, to its calculation of the relative difficulty of comprehension of the charges and of the defendant’s sophistication and intelligence.” United States v. Reckmeyer, 786 F.2d 1216, 1221 (4th Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). Moreover, any Rule 11 violations should be evaluated under a harmless error standard. In enacting the 1983 Amendments to Rule 11, Congress directed that a trial court’s compliance with the rule be evaluated under the harmless error standard, rather than the per se reversal standard previously created by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Under the new Rule 11 standard, which the Advisory Committee observed was meant to overrule McCarthy, this Court may vacate the conviction made pursuant to the plea only if the trial court’s violations of Rule 11 affected the defendant’s substantial rights. See Fed.R.Crim.P. 11(h) and Advisory Committee’s Note to 1983 Amendment. A. DeFusco argues that the trial court erred by failing to explain to him at the Rule 11 hearing the nature of the charges against him, in particular the elements of each offense. DeFusco complains that the trial court merely recited each charge without explaining the true nature of the charge. In explaining the nature of the charges to" } ]

[ { "docid": "22219841", "title": "", "text": "where “district court, having observed and talked with [defendant] at numerous prior hearings, found no reasonable cause to believe he was unfit to stand trial” and, thus, denied motion to determine mental competence). IV. Challenges to the Rule 11 Proceeding Moussaoui’s final challenges to his guilty plea are based upon his assertion that the district court violated Rule 11 by (1) failing to inform him of the nature of the charged conspiracies, in particular, that they encompassed the 9/11 attacks; (2) failing to ensure that there was an adequate factual basis for his plea, including a basis for venue in the Eastern District of Virginia; and (3) failing to inform him of the possible sentences he would face. Rule 11 “governs the duty of the trial judge before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It requires the judge to address the defendant “to ensure that he understands the law of his crime in relation to the facts of his case, as well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); see also United States v. Wood, 378 F.3d 342, 349 (4th Cir.2004) (explaining that the plea colloquy is the avenue by which the court conclusively “establishes] that the defendant knowingly and voluntarily enters his plea”); United States v. Standiford, 148 F.3d 864, 868 (7th Cir.1998) (“The whole point of the Rule 11 colloquy is to establish that the plea was knowingly and voluntarily made.”). We “accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant.” United States v. DeFuseo, 949 F.2d 114, 116 (4th Cir.1991). Because Moussaoui’s claims are raised for the first time on appeal, our review is for plain error. See Vonn, 535 U.S. at 71, 122 S.Ct. 1043. Moussaoui must therefore establish (1) error; (2) that was plain; and (3) that affected his substantial rights, i.e., “a reasonable probability that, but for the error, he would not have entered the" }, { "docid": "13148689", "title": "", "text": "understood the nature of the charges, and ensured that he was pleading willingly and had received sufficient time to discuss the charges with his attorney. On a plain error standard of review, the question is not whether the plea colloquy satisfied Rule 11, but whether it was so deficient that it affected substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.2000). Based on a thorough review of the record, the answer to this question must be no. See United States v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir.2004) (holding that where the charges are not complex, a simple recitation of the indictment may be sufficient to satisfy Rule 11); see also United States v. Martinez-Martinez, 69 F.3d 1215, 1220 (1st Cir.1995) (“The description of the charges need not come directly from the court so long as the record reveals that the defendant understood them.”). Finding no plain error in the district court’s construction of § 1028A or its acceptance of Ozuna-Cabrera’s guilty plea, we affirm his conviction. B. Sentencing Challenges Ozuna-Cabrera also appeals his sentence. The presentence investigation report (PSI Report) recorded his base offense level at 8, applied a sixteen-level enhancement for a prior drug trafficking charge, U.S.S.G. § 2L1.2(b)(l)(A)(i), and recommended a three-level reduction for acceptance of responsibility, id. § 3E1.1. Ozuna-Cabrera’s prior convictions, and the fact that he had committed the instant offense while under a criminal sentence, placed him in criminal history category (CHC) V. Assuming an adjusted offense level of 21 and a CHC of V, the guideline sentencing range (GSR) would have includ ed a mandatory 24 months for the count of aggravated identity theft, and spanned 70-87 months on the remaining three counts, for an effective advisory guideline range of 94-111 months. While Ozuna-Cabrera did not object to the PSI Report, he did file a sentencing memorandum asserting that his CHC overrepresented the gravity of his prior offenses, which, he alleged, stemmed largely from his personal use of drugs and alcohol. He also urged a variant" }, { "docid": "22042119", "title": "", "text": "hearing, Goins’ counsel recommended that the court sentence Goins “within the guideline range of 33-41 months.” It was the government’s position, however, that “the guideline range is 60 months because that’s the statutory minimum, and we would ask that he be sentenced to 60 months in jail.” The government’s reference to the mandatory minimum sentence at the sentencing hearing is the only oral reference to the mandatory minimum prior to the court’s imposition of the sentence. The only document mentioning the mandatory minimum sentence of five years was the presentence report, prepared February 22,1994, almost three months after the plea had been accepted. Despite conceding that the judge faded to inform Goins of the statutory mandatory minimum, the government argues that the error was harmless. II. We generally review de novo the adequacy of a guilty plea. United States v. Good, 25 F.3d 218, 219 (4th Cir.1994), but in the Rule 11 context, violations are evaluated under a harmless error standard. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992). Specifically, a court may vacate a conviction made pursuant to a plea “only if the trial court’s violations of Rule 11 affected the defendant’s substantial rights.” DeFusco, 949 F.2d at 117; Fed. Rule Crim. P. 11(h) and Advisory Committee’s Note to 1983 Amendment. The court must determine “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc). See also DeFusco, 949 F.2d at 116 (“In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant”). Although the Fourth Circuit has addressed violations of Rule 11(c)(1), it never has addressed specifically a court’s failure to inform the defendant of the statutorily-defined mandatory minimum sentence. In United States v. Good, 25 F.3d 218, 221 (4th Cir.1994) (following United States v. Williams, 977 F.2d 866," }, { "docid": "23184347", "title": "", "text": "to something a little ... better when I get out the next time. The court sentenced Smith to 210 months, the maximum sentence in his guideline range. DISCUSSION The government raises the threshold argument that Smith waived his right to this appeal in his plea agreement. We disagree. Smith’s plea agreement waived only his right to appeal his sentence, which is unchallenged on appeal. Smith is arguing a Rule 11 violation, which the plea agreement did not foreclose. We therefore go to the merits. Smith relies on Fed.R.Crim.P. 11(f): Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. This language does not require the district court to weigh any evidence or predict what a jury would do with the case. The court must “assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.” United States v. Maher; 108 F.3d 1513, 1524 (2d Cir.1997); see also United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir.1988) (“Rule 11(f) requires an adequate factual basis for a guilty plea; it does not require the judge to replicate the trial that the prosecutor and defendant entered a plea agreement to avoid.”). This step — matching the facts to the legal elements of the charged crime — is designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Fed. R.Crim.P. 11 advisory committee notes). The factual basis of the plea required by Rule 11(f) need not be drawn directly from the defendant. See Maher, 108 F.3d at 1524-25. The judge may look to answers provided by counsel for the defense and government, the presentence report, “or ..." }, { "docid": "21261633", "title": "", "text": "614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Delgado-Hernandez, 420 F.3d 16, 19 (1st Cir.2005). Accordingly, the trial court must ensure that a defendant understands the nature of the charges to which he purposes to plead and the penalties that may attach. See United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir.2000); see also Fed.R.Crim.P. 11(b)(1). In this instance, the appellant contends that he was unaware of the mandatory minimum sentence and that, therefore, he could not have made a knowing and voluntary plea. We summarily reject this contention. The 20-year mandatory minimum term of imprisonment was spelled out, bluntly and distinctly, in the Agreement. The appellant, represented by counsel and aided by an interpreter, signed the Agreement. Moreover, he indicated during the change-of-plea colloquy that he had read the Agreement and understood its contents. Last — but far from least — the district court, during that colloquy, informed the appellant of the mandatory minimum sentence with unmistakable clarity. It is thus apparent that the record conclusively reflects the appellant’s argument. To be sure, the appellant says that he was misled by the suggestion that his guideline sentencing range would be 168-210 months. But a sentencing court is not bound to credit self-serving protestations, see, e.g., United States v. Ramos, 810 F.2d 308, 313 (1st Cir.1987), and we too are free to reject such claims. In all events, any conceivable confusion would have been dispelled by the court’s clear statement about the mandatory minimum prison term. See United States v. Isom, 85 F.3d 831, 835-36 (1st Cir.1996). Consequently, we see no error — let alone plain error — in the district court’s finding that the appellant’s plea was tendered knowingly and voluntarily. The appellant also asserts for the first time on appeal that his plea rested on an inadequate factual predicate. He bases this assertion on a purported lack of evidence that the heroin he distributed led to either of the two deaths identified by the government. The legal framework is familiar: before a guilty plea can be accepted, the district court is required to" }, { "docid": "18101194", "title": "", "text": "following: ... the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a).... Fed.R.Crim.P. 11(b)(1)(M). The defendant concedes that the rule does not explicitly require the district court to state to a defendant in haec verba that the sentencing guidelines are advisory. He urges, however, that “the logical ‘ramifications’ ” of the rule demand such a statement. In terms, Rule 11(b)(1)(M) does not mandate a talismanic statement, in formulaic language, as to the advisory nature of the sentencing guidelines. Because a district court need not follow a precise script in ensuring the voluntariness of a defendant’s guilty plea, see United States v. Ward, 518 F.3d 75, 86 (1st Cir.2008), we decline to read such a requirement into the rule. Nevertheless, Rule 11(b)(1)(M) does require the court to put the guidelines into a meaningful perspective. In the case at hand, the district judge’s colloquy with the defendant satisfied the imperatives of the rule. Relatedly, the defendant voices a more expansive plaint. Refined to bare essence, this plaint boils down to the proposition that he thought the guidelines were mandatory and therefore — but for his plea — the district court could not have sentenced him below the bottom of the GSR. The record belies this proposition. During the change-of-plea hearing, the district court explained the mechanics of the guidelines. The court also verified that the defendant understood the Agreement and its various provisions. The court made it crystal clear that the defendant could speak up if he did not understand anything and could change his mind and stop the proceeding at any point before his plea was accepted. The court clarified that no mandatory minimum sentence would apply regardless of whether the government filed a section 851 information. At the eoxxrt’s xxrging, the prosecutor explained the various GSRs that might attach if the defendant decided to proceed to trial. To be sure, the defendant initially exhibited some confusion about the sentence that the court could impose absent the Agreement; but the court took" }, { "docid": "22859218", "title": "", "text": "KANNE, Circuit Judge. After an investigation into a Mount Vernon, Illinois drug-trafficking organization, Terrance E. Blalock was charged with conspiring to possess and distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, as well as three counts of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Blalock pleaded guilty to these charges without benefit of a plea agreement and, at 21 years of age, was sentenced to 480 months imprisonment. He now appeals, challenging the validity of his guilty plea and sentence. Blalock first argues that the district court, in accepting his guilty plea, committed plain error by failing to comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure. Second, he argues that the district court committed clear error in enhancing his sentence based on its conclusions with regard to relevant conduct, obstruction of justice, and the use of minors. Blalock did not seek to withdraw his guilty plea in the district court, so to prevail on his first challenge, he must demonstrate that the court committed plain error — a rather exacting standard of review. United States v. Jeffries, 265 F.3d 556, 558 (7th Cir.2001); see also United States v. Anderson, 303 F.3d 847, 854 (7th Cir.2002) (characterizing an attempt to meet the plain error standard as an “uphill battle”). To ensure that guilty pleas are knowingly and intelligently made, Rule 11 requires that a district court accepting a guilty plea “address the defendant personally in open court,” informing the defendant of six categories of rights and ensuring that he or she understands them- — an exchange known as a Rule 11 colloquy, fed. R. CRIM. P. 11(c); Jeffries, 265 F.3d at 558. Those topics which the district court must address include the nature of the charge to which the defendant is pleading guilty; the maximum and mandatory minimum penalties authorized by statute; and the required use of the federal sentencing guidelines when determining an appropriate sentence, including the authority to depart from those guidelines when circumstances" }, { "docid": "22677621", "title": "", "text": "defendant’s plea? (2) Did the district court mislead Aguilar-Muniz to believe that he had not waived the right to appeal? The validity of a waiver of the right to appeal is reviewed de novo. See United States v. Petty, 80 F.3d 1384, 1386 (9th Cir.1996); United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995); United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994). Rule 11 of the Federal Rules of Criminal Procedure requires that before accepting a plea of guilty, the court must address the defendant personally in open court to inform the defendant of and determine that the defendant understands the nature of the charges, any mandatory minimum or maximum penalty, the availability of parole or supervised release, the applicability of Sentencing Guidelines, and the available departures therefrom. See Fed.R.Crim.P. 11(e). In addition, the court must inform the defendant of the rights to plead not guilty, to be tried before a jury, to be represented by counsel, to confront and cross-examine witnesses, and against compelled self-incrimination. See Fed.R.Crim.P. 11(c)(3). The court must determine whether the plea is voluntary, and whether it is supported by a factual basis. Fed.R.Crim.P. 11(d), (f). In United States v. DeSantiago-Martinez, 38 F.3d 394 (9th Cir.1992), we held that “a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient.” Id. at 395. Any failure of the trial court to address waiver of appeal during the Rule 11 colloquy does not, by itself, invalidate the waiver. The adequacy of a Rule 11 plea hearing is reviewed de novo. See United States v. Alber, 56 F.3d 1106, 1109 (9th Cir.1995). Whether the trial court’s colloquy with the defendant satisfies the requirements of Rule 11 is also reviewed de novo. See United States v. Smith, 60 F.3d 595, 597 n. 1 (9th Cir.1995). Technical failure to comply with Rule 11 is not reversible error unless it affects the defendant’s substantial rights. See Fed.R.Crim.P. 11(h). The record demonstrates that the district" }, { "docid": "17392155", "title": "", "text": "had no bearing on guilt or innocence, but instead mattered only for sentencing. The district court then proceeded with the remainder of the sentencing hearing. After hearing Bowlin’s evidence, the court began by adopting the PSR as its own findings. It specified that the offense involved 1.5 kilograms to 5 kilograms of a mixture and substance containing methamphetamine, which supported a base offense level of 34 for purposes of the Sentencing Guidelines. The court then added two more points under § 3B1.4 for use of a minor to commit the offense and subtracted three for acceptance of responsibility, for a final offense level of 33; Bowlin’s criminal history category was VI. Taking into account the advisory Guidelines range, the parties’ recommendations, and the factors set forth in 18 U.S.C. § 3553(a) (including especially Bowlin’s extensive criminal history), the court sentenced Bowlin to 360 months’ imprisonment, five years’ supervised release, a $750 fine, and a $300 special assessment. Though the prison term of 360 months was above the advisory Guidelines range, the district court explained that the additional time was appropriate because of Bowlin’s “abysmal” criminal record (which earned him 24 criminal history points, well above the number needed for category VI) and the danger he posed to the public. The court noted that the sentence was still below the statutory maximum of 480 months. II We first address Bowlin’s claim that the district court erred in denying his belated motion to withdraw his guilty plea. A defendant’s right to withdraw a plea of guilty before sentencing is not absolute, “although the court may allow him to do so if he has a ‘fair and just reason’ for doing so.” United States v. Carroll, 412 F.3d 787, 792 (7th Cir.2005); Fed.R.Crim.P. 11(d)(2)(B). This court reviews a district court’s denial of a motion to withdraw a plea of guilty for an abuse of discretion. We have cautioned that a “defendant seeking to [withdraw a guilty plea] faces an ‘uphill battle’ after a thorough Rule 11 colloquy” has already occurred. United States v. Bradley, 381 F.3d 641, 645 (7th Cir.2004) (quoting United States" }, { "docid": "18101193", "title": "", "text": "be withdrawn if the defendant can establish, prior to sentencing, that a “fair and just reason” for doing so exists. Negrón-Narváez, 403 F.3d at 36 (quoting Fed.R.Crim.P. 11(d)(2)(B)). In considering such a claim, an inquiring court “should focus on whether any of Rule ll’s core concerns have been implicated, that is, whether the plea, when entered, was voluntary, intelligent, and knowing.” Id. The plea in this case was not a one-sided bargain: in exchange for it, the government agreed to refrain from filing an information under 21 U.S.C. § 851 and also agreed to cap any sentence at a point significantly below the GSR that otherwise might have been anticipated. Despite these concessions, the defendant challenges the colloquy that accompanied his change of plea. His most specific challenge focuses on Rule 11(b)(1), which delineates certain requirements applicable to plea colloquies. It provides in pertinent part: Before the court accepts a plea of guilty[, it] ... must address the defendant personally in open court.... [and] inform the defendant of, and determine that the defendant understands, the following: ... the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a).... Fed.R.Crim.P. 11(b)(1)(M). The defendant concedes that the rule does not explicitly require the district court to state to a defendant in haec verba that the sentencing guidelines are advisory. He urges, however, that “the logical ‘ramifications’ ” of the rule demand such a statement. In terms, Rule 11(b)(1)(M) does not mandate a talismanic statement, in formulaic language, as to the advisory nature of the sentencing guidelines. Because a district court need not follow a precise script in ensuring the voluntariness of a defendant’s guilty plea, see United States v. Ward, 518 F.3d 75, 86 (1st Cir.2008), we decline to read such a requirement into the rule. Nevertheless, Rule 11(b)(1)(M) does require the court to put the guidelines into a meaningful perspective. In the case at hand, the district judge’s colloquy with the defendant satisfied the imperatives of the rule. Relatedly, the defendant voices a" }, { "docid": "7202966", "title": "", "text": "1998)), cert. denied, — U.S. -, 119 S.Ct. 2051 (1999). Under Rule 11, a district court must inform the defendant of the nature of the charge, the mandatory minimum penalty, the maximum possible penalty, any special parole or supervised release term, and any applicable sentencing guidelines. See Fed.R.Crim.P. 11(c)(1). If a defendant challenges the Rule 11 procedures employed by the district court during a plea colloquy, this court reviews the record for harmless error. See United States v. Suarez, 155 F.3d 521, 524 (5th Cir.1998). First, the court must determine whether the district court varied from Rule ll’s dictates. See id. If the district court has failed to comply with Rule 11, the court then examines whether the variance “affectfed] the substantial rights of the defendant.” Id. The district court received Vasquez-Bernal’s plea during the course of a simultaneous guilty plea hearing for ten other, similarly-charged defendants. No defendant objected to the procedure employed by the district court, and Vasquez-Bernal’s counsel did not object to the entry of his client’s guilty plea. The district court, however, did not specifically comply with Rule 11 when it failed to personally inform Vasquez-Bernal of the punishment range he faced as a consequence of his crime. That the district court failed to follow Rule ll’s strict requirements, only completes half of our query. We must now determine whether this error affected Vasquez-Bernal’s substantial rights. Though the district court failed to inform Vasquez-Bernal of the punishment range for the charged crime, the presentence report specifically detailed the punishment range applicable to Vasquez-Bernal’s crime. See United States v. Herndon, 7 F.3d 55, 57 (5th Cir.1993) (examining presentence report for evidence that plea was voluntary and made with full awareness of plea’s consequences). Vasquez-Bernal was sentenced to 46 months in custody, 3 years supervised release, and a $100 special assessment. This sentence was at the bottom of the guideline range for his offense and criminal history, including a three-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines Manual § 3E1.1(b). As the government points out, a reversal would necessitate a new plea hearing or trial —" }, { "docid": "21261634", "title": "", "text": "argument. To be sure, the appellant says that he was misled by the suggestion that his guideline sentencing range would be 168-210 months. But a sentencing court is not bound to credit self-serving protestations, see, e.g., United States v. Ramos, 810 F.2d 308, 313 (1st Cir.1987), and we too are free to reject such claims. In all events, any conceivable confusion would have been dispelled by the court’s clear statement about the mandatory minimum prison term. See United States v. Isom, 85 F.3d 831, 835-36 (1st Cir.1996). Consequently, we see no error — let alone plain error — in the district court’s finding that the appellant’s plea was tendered knowingly and voluntarily. The appellant also asserts for the first time on appeal that his plea rested on an inadequate factual predicate. He bases this assertion on a purported lack of evidence that the heroin he distributed led to either of the two deaths identified by the government. The legal framework is familiar: before a guilty plea can be accepted, the district court is required to find that a factual basis for the plea exists. See Fed. R.Crim.P. 11(b)(3). This requirement serves to ensure that the defendant’s conduct actually corresponds to the charges lodged against him. United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir.2005). It protects a defendant “who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” United States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st Cir.2003) (quoting Fed. R.Crim.P. 11 advisory committee’s note (1966 amendment)). The facts relevant to this inquiry may be gleaned either from the defendant’s admissions or from the prosecution’s version of the evidence (to the extent that it is acknowledged by the defendant). Gandia-Maysonet, 227 F.3d at 6. Here, “death resulting” was no mere lagniappe but, rather, an essential element of the charge to which the appellant pleaded. See United States v. Soler, 275 F.3d 146, 152 (1st Cir.2002). Thus, the factual basis for the plea had to cover this point. We think" }, { "docid": "22243709", "title": "", "text": "acceptance of your plea agreement, as well as the adjudication of guilt, pending receipt of the presentence report.” J.A. 272. The court then stated, “I now accept your plea agreement and your plea of guilty, find you guilty, and you stand convicted of that offense before the court.” J.A. 273. In terms of the § 3553(a) factors, the court stated that it had “considered all of the factors under 18 U.S.C. 3553(a), as well as the directives of’ Booker and our decision in United States v. Hughes, 401 F.3d 540 (4th Cir.2005). J.A. 278. The district court also explained that it found “the guideline range sentence of 120 months to be appropriate in this case.” Id. The court then imposed a sentence of 120-months’ incarceration, which was both the statutory maximum and at the bottom of the Guidelines range. II. This is our first opportunity to consider what it means to “accept” a guilty plea under Rule 11(d). Before 2002, Rule 32(e) governed the withdrawal of guilty pleas. That rule stated that if a “motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The rules were amended in 2002 so that Rule 11 now governs the withdrawal of guilty pleas. Under Rule 11, a defendant may withdraw a guilty plea (or plea of nolo contendere) before the court accepts the plea for any reason or no reason. Fed. R.Crim.P. 11(d)(1). But if the court has accepted the defendant’s plea, the plea may only be withdrawn if the court rejects a plea agreement under Rule 11(c)(5) or if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2). A guilty plea cannot be withdrawn after a sentence has been imposed except on direct appeal or by collateral attack. Fed.R.Crim.P. 11(e). A. The denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Bowman, 348 F.3d 408 (4th Cir.2003). But as another circuit has recognized, the" }, { "docid": "22688329", "title": "", "text": "we rejected an identical claim in United States v. Pratt, 239 F.3d 640, 648 (4th Cir.2001). Accordingly, we affirm General’s supervised release term. IV. General argues that the district court committed reversible error by failing to advise him during the plea colloquy about the five year mandatory minimum sentence applicable to his firearm charge. See 18 U.S.C.A. § 924(c) (West 2000) (providing a five year mandatory minimum for carrying a firearm during and in relation to a drug trafficking offense). As General notes, the district court advised General of the statutory máximums for each count but did not advise him of the statutory mandatory mínimums for his firearm offense. Rule 11(c)(1) requires the district court to inform the defendant of a statutory mandatory minimum sentence before accepting a guilty plea. Fed.R.Crim.P. 11(c)(1) (“Before accepting a plea of guilty ... the court must ... inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law....”). Because General did not seek withdrawal of his guilty plea on this ground in the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, 277 F.3d 617 (4th Cir.2002). The district court’s non-compliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General’s substantial rights. Id. In United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995), we established an analytical framework for evaluating whether the district court’s failure to advise the defendant of a statutory mandatory minimum affected the defendant’s substantial rights: The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s knowledge by compliance with Rule 11. Finally, the court must determine how the additional or corrected information would have likely affected the defendant’s decision. Id.- Applying this framework to General’s claim, had the district court recited the mandatory minimum during the plea hearing, it simply would have corroborated information" }, { "docid": "23648583", "title": "", "text": "v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), questions whether the district court. complied with Rule 11 with respect to each defendant. Additionally, appellate counsel for Defendant Kristin Williams questions whether her sentence was reasonable. II. Before accepting a guilty plea, a trial court, through colloquy with the defendant, must ensure that the defendant understands the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty, and the various rights the defendant is relinquishing by pleading guilty. Fed.R.Crim.P. 11(b). The court also must determine that the plea is voluntary and that there is a factual basis for the plea. Id. Generally, we review the acceptance of a guilty plea under the harmless error standard. United States v. Martinez, 277 F.3d 517, 524 (4th Cir.2002). But when, as here, a defendant fails to move in the district court to withdraw his or her guilty plea, any error in the Rule 11 hearing is reviewed only for plain error. Id. at 525. Having reviewed the record, and especially the Rule 11 colloquy the court conducted, we conclude that the district court fully complied with Rule ll’s requirements before accepting Defendants’ guilty pleas. Accordingly, we reject this challenge. III. Counsel for Defendant Kristin Williams also questions whether her sentence was reasonable. However, not all sentences are subject to appellate review. We may review a defendant’s sentence only if (1) it “was imposed in violation of law,” (2) it “was imposed as a result of an incorrect application of the sentencing guidelines,” (3) it “is greater than the sentence specified in the applicable guideline range,” or (4) it “was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a). However, a defendant who is sentenced pursuant to a stipulated plea agreement “may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement.” Id. § 3742(c). In this case, the sentence imposed was not “greater than" }, { "docid": "2175554", "title": "", "text": "alleged failure to comply with the requirements of Rule 11, we review for ‘plain error.’ ” United States v. Webb, 403 F.3d 373, 378 (6th Cir.2005) (quoting United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)). Under this review, “the burden is on the defendant to show that but for the error, he would not have pleaded guilty.” United States v. Martin, 668 F.3d 787, 791 (6th Cir.2012). “A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by the defendant.” Dixon, 479 F.3d at 434. “Rule 11 is meant to ensure that the district court is satisfied that the defendant’s plea is knowing, voluntary, and intelligent.” Webb, 403 F.3d at 378. Under Rule 11, the district court verifies that the defendant is pleading voluntarily and “that the defendant understands his or her applicable constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the factual basis for concluding that the defendant committed the crime charged.” Id. at 378-79. At Catchings’s sentencing hearing, the district court found no indication in the record that Catchings’s plea was not entered knowingly or voluntarily. R. Ill (3/11/2011 Sentencing Hr’g Tr. at 6) (Page ID # 655). Reviewing the record ourselves, we agree. There is simply nothing in the record that would lead us to conclude that Catchings’s plea was anything but knowing, voluntary, and intelligent. See R. 114 (Change of Plea Hr’g at 4-32) (Page ID # 875-903). Catchings’s assertion that he pleaded guilty based on the assurances of his attorney that he would receive probation finds no support in the record. At his change-of-plea hearing, Catchings was informed that the count to which he was pleading guilty carried a maximum penalty of fifteen years of imprisonment. Id. at 20 (Page ID # 891). His plea agreement states that the government would “recommend that [Catchings] be sentenced to no more than the mi-drange of the applicable advisory sentencing guideline range as determined by the Court.” R. 51 (Plea Agreement at 2) (Page ID # 64). Catchings was certainly aware" }, { "docid": "13520499", "title": "", "text": "Q. And if you do receive that, as I understand it, that would take him out of the mandatory minimum ten-year term of imprisonment? [White’s counsel]: That’s correct, Your Honor. Q. And you understand that? A. Yes, sir. (Emphasis added.) White also acknowledged that the judge was “not going to be able to determine the advisory guideline sentence for [White] until after a presentence report has been completed.” The court eventually accepted White’s guilty plea, with both parties apparently believing that he would be eligible for safety valve treatment. A few months later, the probation office released its presentence report. The report indicated that White had been convicted of two misdemeanors for marijuana possession, giving him two criminal history points. These criminal history points made White ineligible for safety valve treatment, which, in turn, prevented the two additional reductions the government had agreed to support from having any practical effect. As a result, White’s sentencing range was 120 to 135 months. Upon seeing the report, White moved to withdraw his guilty plea. He argued that the parties made a “mutual mistake” that his criminal history score would qualify him for safety valve treatment. White also contended that, because no one explained to him that his failure to qualify for safety valve treatment would also render the other reductions ineffective, he did not enter his plea “knowingly and intelligently.” The district judge, however, found that the “mutual mistake” did not amount to a “fair and just reason” to invalidate the guilty plea and that the plea was “knowingly and intelligently” made. The court sentenced White to the mandatory minimum of 120 months imprisonment. We review the district court’s denial of White’s motion to withdraw his guilty plea for an abuse of discretion. United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted but before sentencing, a defendant may withdraw his plea upon showing a “fair and just reason” for doing so. Fed.R.Crim.P. 11(d)(2)(B). But if (as here) the district court conducted a thorough Rule 11 colloquy, the defendant seeking withdrawal faces an “uphill battle.” United" }, { "docid": "23648582", "title": "", "text": "WYNN, Circuit Judge: David James Williams, III and Kristin Deantanetta Williams (“Defendants”) were convicted and sentenced pursuant to stipulated plea agreements under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Both Defendants appeal from their convictions, but only Defendant Kristin Williams challenges her sentence. Regarding the convictions, we find no error below, and therefore affirm. But regarding the sentence imposed on Defendant Kristin Williams, we find that we lack jurisdiction to review her sentence because a sentence imposed pursuant to the terms of a Rule 11(c)(1)(C) plea agreement may only be reviewed if it is unlawful or expressly based on the United States Sentencing Guidelines (the “Guidelines”) — circumstances not present here. I. Defendants separately pled guilty to one count of conspiracy to possess and distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. In their respective plea agreements, Defendants stipulated to a sentence of 120 months of imprisonment under Rule 11(c)(1)(C). The district court sentenced each defendant in accordance with those agreements. On appeal, Defendants’ appellate counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), questions whether the district court. complied with Rule 11 with respect to each defendant. Additionally, appellate counsel for Defendant Kristin Williams questions whether her sentence was reasonable. II. Before accepting a guilty plea, a trial court, through colloquy with the defendant, must ensure that the defendant understands the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty, and the various rights the defendant is relinquishing by pleading guilty. Fed.R.Crim.P. 11(b). The court also must determine that the plea is voluntary and that there is a factual basis for the plea. Id. Generally, we review the acceptance of a guilty plea under the harmless error standard. United States v. Martinez, 277 F.3d 517, 524 (4th Cir.2002). But when, as here, a defendant fails to move in the district court to withdraw his or her guilty plea, any error in the Rule 11 hearing is reviewed only for plain error. Id. at 525. Having reviewed the" }, { "docid": "12388708", "title": "", "text": "points to the defendant’s criminal history score for committing the offenses of conviction while on supervised release following his incarceration for an earlier crime. See id. § 4Al.l(d). The district court resolved both disputed sentencing issues against the defendant. These rulings combined to elevate the defendant’s guideline sentencing range (GSR) to 135-168 months. The court sentenced the defendant to a bottom-of-the-range incarcerative term of 135 months. This timely appeal ensued. II. ANALYSIS The defendant’s counseled brief, filed by new appellate counsel, advances three principal claims of error. In addition, the defendant has filed a pro se brief. We consider the claims set forth in the defendant’s counseled brief one by one and then deal with the claims raised in his pro se brief. Finally, we tie up a loose end. A. The Guilty Plea. The defendant insists that his guilty plea should be vacated because it was not knowing and voluntary. In his view, the district court failed adequately to apprise him of the nature of the charges. Since the defendant did not challenge the integrity of his plea below, our review is for plain error. See United States v. Vann, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To satisfy this exacting standard, the defendant must demonstrate “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). Federal Rule of Criminal Procedure 11(b)(1)(G) requires a district court, before accepting a guilty plea, to “inform the defendant of, and determine that [he] understands, ... the nature of each charge to which [he] is pleading.” This rule exists “to ensure that a defendant who pleads guilty does so with full comprehension of the specific attributes of the charge and the possible consequences of the plea.” United States v. Ramos-Mejia, 721 F.3d 12, 14 (1st Cir.2013) (internal quotation marks omitted). The defendant identifies three ostensible shortcomings in the change-of-plea colloquy. He says that the court" }, { "docid": "16208607", "title": "", "text": "notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” Id. (quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). “[Ejnsuring that the defendant understands the elements of the charges that the prosecution would have to prove at trial” is also “a ‘core concern’ of Rule 11.” United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir.2000) (quoting United States v. Hernandez-Wilson, 186 F.3d 1, 5 (1st Cir.1999)). Accordingly, Rule 11 requires that a court, before accepting a guilty plea, “inform the defendant of, and determine that the defendant understands, ... (G) the nature of each charge to which the defendant is pleading.” Fed.R.Crim.P. 11(b)(1). Furthermore, “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Rule 11 therefore requires a court to “determine that there is a factual basis for the plea” before entering judgment. Fed.R.Crim.P. 11(b)(3). This additional procedural requirement “ ‘protects] a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’ ” United States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st Cir.2003) (quoting Fed. R.Crim.P. 11, advisory committee’s note (1966 amendment)). B. Plain Error Review “Under ordinary circumstances, we review the district court’s acceptance of a guilty plea for abuse of discretion.” United States v. Negron-Narvaez, 403 F.3d 33, 37 (1st Cir.2005). However, because Delgado failed to call the district court’s attention to the alleged errors in the plea proceedings “despite having had ample opportunity to do so,” for example, by seeking to withdraw his plea prior to sentencing pursuant to Fed.R.Crim.P. 11(d)(2), his claim is subject only to plain error review on direct appeal. Id. “The defendant’s burden under the plain error standard is a heavy one.”" } ]

[ { "docid": "15378685", "title": "", "text": "of mandamus in this case must be denied. Mandamus is an appropriate writ to require that judicial action shall be taken where the district judge unwarrantably refuses to act, and it, or a writ of prohibition, is appropriate where jurisdiction has been exceeded; but it is not appropriate, where judicial action has been taken, to control or reverse . that action, especially where the matter is interlocutory only and can be subsequently reviewed on appeal. It is not doubted that in a proper case this court has the power to issue a writ of mandamus in aid of its appellate jurisdiction. Delaware, L. & W. R. Co. v. Rellstab, District Judge, 3 Cir., 15 F.2d 137, reversed 276 U.S. 1, 48 S. Ct. 203, 72 L.Ed. 439; Ex parte United States, 287 U.S. 241, 248, 53 S.Ct. 129, 77 L.Ed. 283. And we do not doubt that we could properly issue the writ if a district judge arbitrarily refused to take action as required by the new rules of civil procedure. Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706, 47 S.Ct. 286, 71 L.Ed. 481. But in the instant case the writ is asked for in effect to reverse an interlocutory order of the district judge. In Maryland v. Soper, 270 U.S. 9, 29, 46 S. Ct. 185, 189, 70 LEd. 449, the Supreme Court said: “Mandamus is an extraordinary remedy which is issued by this court under Rev.Stats. § 688 [28 U.S.C.A. § 342] to courts of the United States in the exercise of its appellate jurisdiction, and in civil cases does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or appeal. Ex parte Roe, 234 U.S. 70, 73, 34 S.Ct. 722, 58 L.Ed. 1217; Ex parte Tiffany, 252 U.S. 32, 37, 40 S.Ct. 239, 64 L.Ed. 443; Ex parte Park Square Automobile Station, 244 U.S. 412, 37 S.Ct. 732, 61 L.Ed. 1231; Ex parte Slater, 246 U.S." } ]

[ { "docid": "314150", "title": "", "text": "Writs Act, 86 Harv.L.Rev. 595 (1973). Use of mandamus in exercising “supervisory authority” has been approved “in proper circumstances” by the Supreme Court. La Buy v. Howes Leather Co., 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957). In La Buy, however, the Court was dealing with a court having appellate jurisdiction over judgments of district courts whose location is within its circuit, 28 U.S.C. § 41, not with this court, whose appellate jurisdiction over judgments of district courts is determined by the basis for the district court’s jurisdiction. Thus the key phrases useful in determining whether this court will entertain petitions to mandamus a district court are “in aid of its jurisdiction” in § 1651 and the Supreme Court’s reference to “in proper circumstances” in La Buy. (a) “In Aid of Its Jurisdiction ” Where this court would have jurisdiction over an appeal from a final judgment, it clearly has power under § 1651 to overturn a district court order that would prevent that appeal or would otherwise frustrate this court’s exercise of its proper jurisdiction. That much is clear. More troublesome are petitions seeking to overturn district court orders that would not necessarily frustrate this court's appellate jurisdiction. Such petitions may be categorized as: (1) those implicating responsibilities of regional circuit courts for supervising, administering, overseeing, and managing the courts within the circuit (e.g., assignment of judges, adjustment of calendars, transfer of case to another district, reference to master); (2) those that arise in all types of cases, but do not directly implicate the patent or Little Tucker Ast doctrinal jurisprudence of this court (e.g., disqualification of counsel); and (3) those that do directly implicate, or are intimately bound up with and controlled by, the patent and Tucker Act doctrinal jurisprudential responsibilities of this court (e.g., separate trial of patent issues; refusal to apply 35 U.S.C. § 282; court-ordered tests for utility). As discussed below, this court has disavowed “supervisory” authority over the district courts. In so doing, this court also recognized that a writ would not be “in aid of its jurisdiction” if issued" }, { "docid": "13426854", "title": "", "text": "improper reference. In Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809 (7th Cir. 1942), improper reference warranted only assessment of costs to the party so moving. Here neither party moved for reference to a master and the salaries of masters are no longer paid by the parties. See 28 U.S.C. § 634. Assessment of costs, therefore, would not be a remedy for an improper reference in this case, if it would in any. . Whether or not we agree with the particular decision, the examination of the legislative history and constitutional concerns over the matter of magistrates’ status and jurisdiction there set forth is most helpful. . The Court in Holiday v. Johnston, 313 U.S. 342, 353, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), explicitly distinguished the practice of referring cases to masters in equity cases from the conduct of an evidentiary hearing in a habeas corpus case. . LaBuy v. Howes Leather Co., 352 U.S. 249, 256, 77 S.Ct. 309, 313 (1957), involved an attempted reference of an entire antitrust trial, all issues included, to a master. In that case, the Court also found that the district court judge attempted to make this reference despite the fact that due to his exclusive involvement in the pretrial proceedings he could “dispose of the litigation with greater dispatch and less effort than anyone else.” In Los Angeles Brush Corp. v. James, 272 U.S. 701, 47 S.Ct. 286 (1927), the Court denied leave to file a petition to show cause why a writ of mandamus should not issue against a district court judge to prevent reference of a complete patent trial to a master. . It is true that the magistrate, was present at the trial from the beginning, indicating that Judge Judd suspected that a reference to a master would be necessary. . Section 1 of the Plan in effect in the Eastern District states Insofar as is practicable: (a) the trial of criminal cases shall be given preference over civil cases, as provided by Rule 50(a), Federal Rules of Criminal Procedure; and (b) the" }, { "docid": "15814957", "title": "", "text": "mandamus. Mandamus “is meant to be used only in the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power.’ ” LaBuy v. Howes Leather Co., 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957), citing Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). It is argued that the district judge had unquestioned power or jurisdiction to dismiss the indictments and that, therefore, this is an inappropriate case for mandamus. However, we do not believe that the propriety of mandamus depends on whether the asserted error is labeled as an exercise of non-existent power or merely as an abuse of discretion. The important considerations, in the final analysis, are the gravity of the issue involved and the necessity that the reviewing judges see for corrective action. In recent years, the Supreme Court has held that the courts of appeals have the power to issue mandamus in certain instances in support of their supervisory authority over the district courts of the circuit. In LaBuy v. Howes Leather Co., 352 U.S. 249, 256, 260, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957), the Court, quoting from Los Angeles Brush Corp. v. James, 272 U.S. 701, 706, 47 S.Ct. 286, 71 L.Ed. 481 (1927), said: “Where the subject concerns the enforcement of the . . . [rjules which by law it is the duty of this Court to formulate and put into force,” mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.” See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). We think that this is a particularly appropriate case for our exercise of our supervisory authority by means" }, { "docid": "22823882", "title": "", "text": "(1914); Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309 (1917); Ex parte Chicago, Rock Island & Pacific Ry. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed. 631 (1921); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927); Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Ex parte La Prado, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311 (1933); Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Roche v. Evaporated Milk Ass’n, supra Note 17; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). . La Buy v. Howes Leather Co., supra Note 31, 352 U.S. at 257, 77 S.Ct. 309 (“clear abuse of discretion”); Roche v. Evaporated Milk Ass’n, supra Note 17, 319 U.S. at 32, 63 S.Ct. at 945 (“to compel an inferior court to relinquish a jurisdiction which it could not lawfully exercise or to exercise a jurisdiction which it had unlawfully repudiated”); Los Angeles Brush Mfg. Corp. v. James, supra Note 31, 272 U.S. at 705, 47 S.Ct. 286 (abuse of discretion or no jurisdiction); United States v. Mayer, supra Note 31, 235 U.S. at 70, 35 S.Ct. 16 (beyond the “power” of the lower court); Ex parte Bradley, supra Note 31. . In Part III, infra, we hold that the Court of General Sessions has jurisdiction to issue orders regarding dissemination of arrest records. Thus in the future the only question will be the appropriate scope of such an order in each particular case. The D.C. Court of Appeals has appellate jurisdiction over final orders of the Court of General" }, { "docid": "13426816", "title": "", "text": "354, 357 (N.D.Cal.1917). Equity Rule 68, 226 U.S. 669 (1912), did not change the substance of the rule, and it was held in Ex parte Peterson, supra, that the Seventh Amendment did not prevent the appointment of an auditor and the conduct of a preliminary hearing intended to define and simplify the issues or affect the master’s power “to make tentative findings.” 253 U.S. at 310, 314, 40 S.Ct. 543. Nevertheless, the Supreme Court quite readily construed the “exception, not the rule” language of the Equity Rules as forbidding blanket referrals of, e. g., all patent cases, Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), even while the particular reference in that case was held not tp be an abuse of the district court’s discretion because calendar congestion and the priority given to criminal cases were preventing consideration of other civil- cases by the trial courts. But for reasons stated, reference to masters has not always had either clear or happy sailing in the courts. See Kaufman, supra. Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942), sets forth the reasons of delay, expense, entitlement to the decision of a judge and confidence in the outcome of the contest as going against the use of masters “save where exceptional circumstances are shown.” Finding reference improper in that case, the court ordered its costs assessed to the plaintiff who had requested the reference. The court did not remand for a trial, however. Adventures in Good Eating, along with a few other cases from the Seventh Circuit, was particularly relied upon by the Supreme Court in LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), where the Court dealt the practice of reference to special masters a substantial, if not a fatal blow. There the Court held in an antitrust case that the presence of unusually complex issues of fact and law is not justification for reference to a master but rather an impelling reason for trial before" }, { "docid": "23048857", "title": "", "text": "in 1938, and as it stands today, provides that the master’s findings of fact are not to be disturbed unless “clearly erroneous.” As the limitations on the scope of the judge’s review of a master’s findings of fact grew stricter, the power of the district judge to refer cases to a master became narrower. The early Rules of Equity placed no restrictions on the use of masters. Equity R. 73-83, 42 U.S. (1. How.) lxiv-lxvii (1842). An amendment to the Equity Rules in 1912 made a reference to a master the exception, save in matters of account, and “only upon a showing that some exceptional condition requires it.” Equity R. 59, 226 U.S. 666 (1912). Federal Rule of Civil Procedure 53, as promulgated in 1938, consolidated the various Equity Rules on masters and left substantially unchanged the “exceptional condition” requirements of the 1912 rules. The present Rule 53 is substantially the same as the 1938 version. The Supreme Court has construed the “exceptional condition” limitation in two major cases. In both cases, the Court has indicated that the constriction is the consequence of deficiencies in the master system; It is not because of constitutional considerations. In Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), the Court upheld, due to calendar congestion, a particular reference to a master in a patent case. The Court, however, interpreted the “exceptional condition” limitation to forbid blanket referrals of patent eases. The only reason assigned was that references “had been productive of unnecessary expense and burden to the litigants and caused much delay in their disposition.” Id. at 707, 47 S.Ct. at 288. Thirty years later, the Court again had an occasion to construe the “exceptional condition” for reference. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the district judge had referred a complex antitrust case to a master over the objections of the litigants. The judge already had heard and decided requests for discovery and admissions, and motions to dismiss and for summary judgment. The Court" }, { "docid": "7154256", "title": "", "text": "a different sort of power under Section 342 of the earlier editions of Title 28 U.S.Code, from the strictly auxiliary power given to the Court of Appeals under Section 377 of the same editions. Section 342 was repealed in the 1948 recodification which consolidated it with Section 377, with somewhat different wording, into Section 1651(a), Title 28 U.S.Code, 1948 Edition, under which the present action arises. The opinion cautions that because of this difference in statutory power decisions of the Supreme Court prior to 1948 supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not be safely relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. But the Supreme Court apparently has not taken that view. In Bankers Life & Casualty Co. v. Holland, supra, 346 U.S. 379, 383-384, 74 S.Ct. 145, 148, 98 L.Ed. 106, which was decided in 1953 under the present all writs section, the Court, in holding that mandamus was not an appropriate remedy under the particular facts of that case, did not distinguish Ex parte Simons on that ground, but stated: “Petitioner has alleged no special circumstances such as were present in the cases which it cites.” One of the cases cited was Ex parte Simons, supra. In La Buy v. Howes Leather Co., supra, 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290, which was decided in 1957 some two years after In re Josephson, supra, the Court did not refer to any difference in power conferred by the code prior to 1948 and that conferred by the all writs section in the 1948 codification of the Code. In affirming the ruling of the Court of Appeals in issuing the writ, it relied on two earlier cases decided under the code authority existing prior to 1948, State of Maryland v. Soper, 1926, 270 U.S. 9, 30, 46 S.Ct. 185, 70 L.Ed. 449; Los Angeles Brush Mfg. Corp. v. James, 1927, 272 U.S." }, { "docid": "13944826", "title": "", "text": "69 S.Ct. at 1225-26, 93 L.Ed. at 1536-37; accord, Swift & Co. Packers v. Compañía Colombiana Del Caribe, S.A., 339 U.S. 684, 688-89, 70 S.Ct. 861, 864-65, 94 L.Ed. 1206, 1210-11 (1950). The orders here fulfill neither of these requirements. No rights are finally determined and the deposit of money into the court will deprive no party of a later appeal raising this issue. Our decision in Preston v. United States, 284 F.2d 514, 515 n. 1 (9th Cir. 1960), although otherwise in point, is distinguishable on the first of these grounds. The majority concludes, however, that we can convert this appeal into a petition for mandamus and on that basis finds the necessary jurisdiction to decide this case. See 28 U.S.C. § 1651. While I concur, the limitation of our foray into the rewriting of documents filed in our court should be carefully noted. Before considering the circumstances which warrant conversion of an appeal into a petition for mandamus, it is worthwhile to note the circumstances in which a petition for mandamus lies. Mandamus may not be used as a substitute for a statutory appeal and has traditionally been available only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, 1190 (1943). Mandamus has more recently been held to be available to ensure proper judicial administration in cases where appeal was possible only after final judgment. La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). In La Buy, the petitioners sought the writs to review orders referring the litigation to a master in violation of the rules for such referral. The Supreme Court held that Courts of Appeals, in aid of their supervisory powers, can issue writs of mandamus where the actions of the district judge are “palpably improper.” Id. at 256, 259-60, 77 S.Ct. at 313, 315, 1 L.Ed.2d 297, 299-300. More recently the" }, { "docid": "15670508", "title": "", "text": "avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. As was pointed -out by Chief Justice Marshall, to grant the writ in such a case would be a ‘plain evasion’ of the Congressional enactment that only final judgments be brought up for appellate review. ‘The effect, therefore, of this mode of interposition, would be to retard decisions upon questions Which were not final in the court below, so that the same cause might come before this Court many times before there would be a final judgment.’ (Citing cases.) * * * “Here the inconvenience to the litigants results alone from the circumstance that Congress has provided for review of the district court’s order only on review of the final judgment, and not from an abuse of judicial power, or refusal to exercise it, which it is the function of mandamus to correct. Hence there are in this case no special circumstances which would justify the issuance of the writ, such as the persistent disregard of the Rules of Civil Procedure * * * prescribed by this court, found in McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992, (see Los Angeles Brush Corp. v. James, 272 U.S. 701, 706 [708], 47 S.Ct. 286, 288, 289, 71 L.Ed. 481; or the refusal to perform a plain ministerial duty, involved in Ex parte United States, supra [287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283]; or the considerations of comity between state and federal courts, thought to be controlling in State of Maryland v. Soper (No.l), 270 U.S. 9, 29, 46 S.Ct. 185, 189, 70 L.Ed. 449.” The application for writ of mandamus is addressed to the judicial discretion of the court and is subject to the principles and procedure governing such matters. To warrant the court in issuing the writ it must appear that the petitioner has a clear legal right to the performance of the particular duties sought to be enforced and that it has no other plain, adequate" }, { "docid": "7154257", "title": "", "text": "writs section, the Court, in holding that mandamus was not an appropriate remedy under the particular facts of that case, did not distinguish Ex parte Simons on that ground, but stated: “Petitioner has alleged no special circumstances such as were present in the cases which it cites.” One of the cases cited was Ex parte Simons, supra. In La Buy v. Howes Leather Co., supra, 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290, which was decided in 1957 some two years after In re Josephson, supra, the Court did not refer to any difference in power conferred by the code prior to 1948 and that conferred by the all writs section in the 1948 codification of the Code. In affirming the ruling of the Court of Appeals in issuing the writ, it relied on two earlier cases decided under the code authority existing prior to 1948, State of Maryland v. Soper, 1926, 270 U.S. 9, 30, 46 S.Ct. 185, 70 L.Ed. 449; Los Angeles Brush Mfg. Corp. v. James, 1927, 272 U.S. 701, 706, 47 S.Ct. 286, 71 L.Ed. 481. Referring to the 1948 Code the opinion stated: “The recodification of the All Writs Act in 1948, which consolidated old §§ 342 and 377 into the present § 1651(a), did not affect the power of the Courts of Appeals to issue writs of mandamus in aid of jurisdiction. * * Since the Court of Appeals could at some stage of the anti-trust proceedings entertain appeals in these cases it has the power in proper circumstances as here to issue writs of mandamus reaching them.” The statement appears to be particularly pertinent in view of the fact that the dissenting opinion refers with approval to the distinction made in In re Josephson, supra, between the power conferred by the earlier and present day code provisions. This review indicates to us that it was the exceptional circumstances involved in Ex parte Simons, supra, namely the deprivation of the constitutional right of trial by jury, that accounted for the issuance of the writ, rather than the existence of a broader" }, { "docid": "5914500", "title": "", "text": "S.Ct. 309, 313, 1 L.Ed.2d 290 (1957). Since La Buy, mandamus has become “an accepted means to challenge a district court’s order referring matters to a special master under Rule 53.” In re U.S., 816 F.2d 1083, 1086 (6th Cir.1987). See also In re Bituminous Coal Operators’ Ass’n, Inc., 949 F.2d 1165, 1168 (D.C.Cir.1991) (Citing La Buy, 352 U.S. at 256, 77 S.Ct. at 313) (“We grant the writ not because the district judge simply ‘abused his discretion,’ but because he has no discretion to impose on parties against their will ‘a surrogate judge,’ a substitute from the private bar charged with the responsibility for adjudication of the case.”) We therefore turn to Prudential’s petition. III. A. The historical role of the special master informs our decision. Special masters were first utilized as judicial assistants to the court in the early years of the English chancery practice. See Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 452 (1958). Although the practice was continued in the United States, id. at 453, beginning in 1912 the rules of equity restricted the use of masters to situations where an “exceptional condition” required it. Silberman, Masters and Magistrates Part II: The American Analogue, 50 N.Y.U.L.Rev. 1297, 1322 (1975). In fact, much of today’s Rule 53(b) is taken directly from Equity Rule 59 which was adopted by the Supreme Court in 1912 and provided: Reference to Master — Exceptional, Not Usual Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it.... Rules of Practice in Equity, 226 U.S. 666 (1912). As stated by Professor Silberman, There seems to be no official comment as to why the restriction [requiring an exceptional condition] was added. However, in Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), the Court, per Chief Justice Taft, ascribed the rule’s purpose to a shielding of equity litigants from the delay and expense that often accompanied reference to a master. Id." }, { "docid": "5914499", "title": "", "text": "and the inefficiency of piecemeal appeals, issuance of a writ of mandamus is limited to extraordinary cases. In re School Asbestos Litigation, 977 F.2d 764, 772 (3d Cir.1992); In re Pruitt, 910 F.2d 1160, 1167 (3d Cir.1990). However, despite the general reluctance to grant writs of mandamus, we may do so provided that the petitioner demonstrates that it lacks adequate alternative means to obtain the relief sought and that the petitioner’s right to the issuance of a writ is clear and undisputable. Our cases have also emphasized that mandamus must not be used as a mere substitute for appeal. Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1422 (3d Cir.1991); In re Pruitt, 910 F.2d at 1167. Travellers International AG. v. Sue L. Robinson, 982 F.2d 96, 98 (3d Cir.1992). The Supreme Court has recognized that it is ultimately within the sound discretion of the court of appeals to issue writs of mandamus in cases such as the one before us. La Buy v. Howes Leather Co., 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957). Since La Buy, mandamus has become “an accepted means to challenge a district court’s order referring matters to a special master under Rule 53.” In re U.S., 816 F.2d 1083, 1086 (6th Cir.1987). See also In re Bituminous Coal Operators’ Ass’n, Inc., 949 F.2d 1165, 1168 (D.C.Cir.1991) (Citing La Buy, 352 U.S. at 256, 77 S.Ct. at 313) (“We grant the writ not because the district judge simply ‘abused his discretion,’ but because he has no discretion to impose on parties against their will ‘a surrogate judge,’ a substitute from the private bar charged with the responsibility for adjudication of the case.”) We therefore turn to Prudential’s petition. III. A. The historical role of the special master informs our decision. Special masters were first utilized as judicial assistants to the court in the early years of the English chancery practice. See Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 452 (1958). Although the practice was continued in the United States, id. at 453, beginning in" }, { "docid": "23048858", "title": "", "text": "indicated that the constriction is the consequence of deficiencies in the master system; It is not because of constitutional considerations. In Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), the Court upheld, due to calendar congestion, a particular reference to a master in a patent case. The Court, however, interpreted the “exceptional condition” limitation to forbid blanket referrals of patent eases. The only reason assigned was that references “had been productive of unnecessary expense and burden to the litigants and caused much delay in their disposition.” Id. at 707, 47 S.Ct. at 288. Thirty years later, the Court again had an occasion to construe the “exceptional condition” for reference. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the district judge had referred a complex antitrust case to a master over the objections of the litigants. The judge already had heard and decided requests for discovery and admissions, and motions to dismiss and for summary judgment. The Court affirmed the court of appeals’ grant of mandamus to vacate the reference, further narrowing the limitation with the admonition that references amount “to little less than an abdication of the judicial function.” Id. at 256, 77 S.Ct. at 313. The Court’s conclusion appears to rest, not on constitutional grounds, but on three major problems that long had plagued the master system. The first two, the expense and the delay involved in references, already had been noted in Los Angeles Brush Manufacturing Co. The third problem emanated from the evolution of the master’s role from merely assisting the trial judge to the level where his findings of fact could not be disturbed unless “clearly erroneous.” The new weight attached to the master’s findings had the effect of transforming the traditional role of the district judge as a fact finder to the function of an appellate reviewer of the hidings of fact. The cases that had been referred, however, were being tried “before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in" }, { "docid": "12153999", "title": "", "text": "Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 775-76 (1957) ; P. Carrington, The Power of District Judges and the Responsibility of Courts of Appeal, 3 Ga.L.Rev. 507, 513 (1969). See, however, Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), and Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915), in each of which the Supreme Court ordered a writ of mandamus directed to a district court in the exercise of the power it formerly possessed to issue “writs of mandamus in cases, . . . warranted by the principles and usages of law, to any courts appointed . . . under the authority of the United States.” Judiciary Act of 1789, 1 Stat. 81; Act of March 3, 1911, ch. 231, 36 Stat. 1156. This power continued until passage of the Act of June 25, 1948, ch. 646, 62 Stat. 944, 28 U.S.C. § 1651 (1970), by which the authority of all federal courts is now limited to “writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” (emphasis supplied). See In re Josephson, 218 F.2d 174, 177-179 (1st Cir. 1954). As that case warns, [D]ecisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. The reason is that the Supreme Court might have been exercising a different sort of power from the strictly auxiliary power given to us under the all writs section. 218 F.2d at 179 (emphasis in original). See also La Buy v. Howes Leather Co., 352 U.S. 249, 265-266, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (dissenting opinion). . We recognize that petitioner’s arguments encompass the contention that the rulings complained of impinged on Fed.R.Civ.P. 17(c) and 35(a). See" }, { "docid": "13944827", "title": "", "text": "may not be used as a substitute for a statutory appeal and has traditionally been available only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, 1190 (1943). Mandamus has more recently been held to be available to ensure proper judicial administration in cases where appeal was possible only after final judgment. La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). In La Buy, the petitioners sought the writs to review orders referring the litigation to a master in violation of the rules for such referral. The Supreme Court held that Courts of Appeals, in aid of their supervisory powers, can issue writs of mandamus where the actions of the district judge are “palpably improper.” Id. at 256, 259-60, 77 S.Ct. at 313, 315, 1 L.Ed.2d 297, 299-300. More recently the Court said: It is, of course, well settled, that the writ is not to be used as a substitute for appeal, . . . even though hardship may result from delay and perhaps unnecessary trial, . . . . The writ is appropriately issued, however, when there is “usurpation of judicial power” or a clear abuse of discretion . Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238,13 L.Ed.2d 152, 159 (1964) (citations omitted). In 1967 the Court, while reminding the lower courts that the extraordinary writs are to be used only in “exceptional circumstances amounting to a judicial ‘usurpation of power’,” stated that the writ of mandamus has been properly used “where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court . . . .” Will v. United States, 389 U.S. 90, 95, 96, 88 S.Ct. 269, 273, 274, 19 L.Ed.2d 305, 310 (1967) (citations omitted). The litigation before us presents exceptional circumstances amounting to a judicial usurpation of power and if appellants had" }, { "docid": "12154000", "title": "", "text": "in aid of their respective jurisdictions and agreeable to the usages and principles of law” (emphasis supplied). See In re Josephson, 218 F.2d 174, 177-179 (1st Cir. 1954). As that case warns, [D]ecisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. The reason is that the Supreme Court might have been exercising a different sort of power from the strictly auxiliary power given to us under the all writs section. 218 F.2d at 179 (emphasis in original). See also La Buy v. Howes Leather Co., 352 U.S. 249, 265-266, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (dissenting opinion). . We recognize that petitioner’s arguments encompass the contention that the rulings complained of impinged on Fed.R.Civ.P. 17(c) and 35(a). See notes 2, 16, supra. While a pattern of noncompliance with the federal rules may warrant an invocation of mandamus, La Buy v. Howes Leather Co., supra note 28, 352 U.S. at 257-258, 77 S.Ct. 309; see also Will v. United States, supra note 7, 389 U.S. at 99-100, 102-104, 88 S. Ct. 269; Los Angeles Brush Mfg. Corp. v. James, supra note 28, 272 U.S. at 706, 47 S.Ct. 286; cf. McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940), the Court has made it clear that La Buy “is simply inapposite where there is no showing of a persistent, disregard of the federal rules.” Will v. United States, supra note 7, 389 U.S. at 104 n. 14, 88 S.Ct. at 278. We are advertent, too, to Schleganhauf v. Holder, supra note 3, where the Court held that mandamus was appropriately used to review a district court order subjecting a defendant in a civil case to physical and mental examinations. The Court rested its holding on the presence of “the basic," }, { "docid": "3276389", "title": "", "text": "this decision, the court has not discounted the cases upon which the plaintiffs rely. See La Buy v. Howes Leather Co., 352 U.S. 249, 257-59, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Prudential Ins. Co. of Am. v. United States Gypsum Co., 991 F.2d 1080, 1085-87 (3d Cir.1993); Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1096-97 (3d Cir.1987). Instead, the court believes that each one of these decisions is distinguishable from this case. a. La Buy v. Howes Leather Co. In La Buy, the Supreme Court, on mandamus review, reversed a decision by a district court to refer two complex antitrust cases to a special master for trial. 352 U.S. at 259-60, 77 S.Ct. 309. Apparently, the federal judge justified the reference by citing primarily his heavy docket and the complex legal and factual issues presented by the litigation. Id. at 259, 77 S.Ct. 309. In response, the Supreme Court stated that “congestion in itself is not such an exceptional circumstance as to warrant a reference to a master. If such were the test, present congestion would make references the rule rather than the exception.” Id. The Court also pointed out that “most litigation in the anti-trust field is complex.” Id. Nevertheless, the litigants were still “entitled to a trial before a court” of law. Id. (emphasis added). In fact, the Supreme Court believed that the complexity of the issues provided a “[co]m-pelling reason for trial before a regular, experienced trial judge.” Id. Here, the court referred this matter to a special master for the limited purpose of determining what materials, if any, should remain under seal in this litigation. This referral in no way threatened any party’s right to a jury trial since the court resolved that issue on summary judgment. See Joint Stock Soe’y, 53 F.Supp.2d at 694. Instead, the ruling placed only non-disposi-tive issues before the special master. As the court will soon discuss, under La Buy, this decision was entirely appropriate since the court may, at times, utilize extra-judicial resources in order to more efficiently and expeditiously discharge its duties to not only specific" }, { "docid": "15814958", "title": "", "text": "of the circuit. In LaBuy v. Howes Leather Co., 352 U.S. 249, 256, 260, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957), the Court, quoting from Los Angeles Brush Corp. v. James, 272 U.S. 701, 706, 47 S.Ct. 286, 71 L.Ed. 481 (1927), said: “Where the subject concerns the enforcement of the . . . [rjules which by law it is the duty of this Court to formulate and put into force,” mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.” See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). We think that this is a particularly appropriate case for our exercise of our supervisory authority by means of mandamus. The most important factor in this regard is that, in dismissing the indictments, respondent purported to apply rules promulgated by the judges of this court acting as a circuit council and, in so doing, interpreted those rules in a fashion that subverts the policies they were designed to serve. Having given the district courts a weapon by which to dismiss indictments, we have the power through mandamus to see that it is not wielded in a manner that subverts or ignores the interests that were intended to be served. The issue in this case involves the proper interpretation to be given to our Prompt Disposition Rules. We have found that the district judge interpreted the Rules in a fashion that does violence to the policies that the Rules were intended to promote, without any offsetting benefit to the public interest. The result was a wholesale dismissal of seven indictments of government officials alleged to have conspired to receive bribes to influence their official conduct. There is a compelling public interest in the determination" }, { "docid": "4507998", "title": "", "text": "are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. The non-jury standard of review applies here. Thus, unless the proceeding referred to the Magistrate Judge in this case is characterized as part of a “difficult computation of damages,” the reference can only be justified upon a showing that some “exceptional condition” required it. Beazer makes no argument that any “exceptional condition” exists in this case, nor does Beazer argue that the Magistrate Judge performed any difficult computations. Rather, Beazer contends that the referral was proper because the equitable allocation proceeding conducted by the Magistrate Judge was a “predicate” to a “difficult computation of damages” performed by the District Court. Beazer’s expansive reading of Rule 53(b) is at odds with the Supreme Court’s restrictive interpretation. In La Buy v. Howes Leather Co., 352 U.S. 249, 256, 259, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the Court affirmed the appellate court’s issuance of a writ of mandamus compelling the District Court to vacate its order referring essentially the entirety of two complex antitrust cases to a special master. The Court noted that while masters could “aid judges” in the performance of specific duties, they could not be permitted to “displace the court.” Id. at 256, 77 S.Ct. 309; see also Prudential Ins. Co. v. United States Gypsum Co., 991 F.2d 1080, 1086 (3d Cir.1993) (“A district court has no discretion to delegate its adjudicatory responsibility in favor of a decision maker who has not been appointed by the President and confirmed by the Senate!”) (citing La Buy); In re Bituminous Coal Operators’ Ass’n, Inc. 949 F.2d 1165, 1168 (D.C.Cir.1991) (“Rule 53 ... authorizes the appointment of special masters to assist, not to replace, the adjudicator, whether judge or jury, constitutionally indicated for federal court litigation”). The Court found that the references at issue “amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the" }, { "docid": "5328637", "title": "", "text": "98 S.Ct. 2552, 2557, 57 L.Ed.2d 504, 511 (1978). The judgment of the trial court is not to be disturbed if there is any theory on which it can be rested. We find that, certainly with respect to the parking lot issue, the District Court acted within the bounds of its authorized jurisdiction in granting the new trial, and we accordingly deny mandamus. III. We recognize that in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the Supreme Court approved the use of mandamus to correct a pattern of erroneous referrals of eases to special masters because “supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.” Id. at 259-260, 77 S.Ct. at 315. And in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Court sanctioned use of mandamus as a method of resolving an important legal question of first impression under Federal Rule of Civil Procedure 35. Today we need not and do not decide whether the doctrines of “supervisory” and “advisory” mandamus apply in criminal cases, where the policy against piecemeal appeals, particularly by the Government, reaches its zenith. See Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); Will v. United States, 389 U.S. 90, 96-97, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); United States v. Griesa, 481 F.2d 276, 278 (2d Cir. 1973). Nor need we enter the controversy as to whether these doctrines have survived Will, for they are inapplicable here. Petitioner is simply disputing the District Court’s evaluation of what the “interest[s] of justice” require in this case. It would be singularly inappropriate to review this fact-specific discretionary determination by way of mandamus. Petitioner makes much of the decision of the First Circuit in In re United States, 565 F.2d 173 (1st Cir. 1977), where the court analogized the grant of a new trial on the basis of an allegation of “evidence which so clearly fails to meet any of the standards governing" } ]

[ { "docid": "22687604", "title": "", "text": "Mr. Justice Blackmun delivered the opinion of the Court. The issue presented in this case is whether § 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act), 84 Stat. 1265, 21 U. S. C. § 846, authorizes a sentencing court to impose a term of special parole upon a defendant who is convicted of conspiracy to manufacture or distribute a controlled substance. I Section 406 provides: “Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” The object of the conspiracy at issue in this case was the commission of the substantive offense defined in § 401 (a) of the Act, 21 U. S. C. § 841 (a). That subsection reads: “Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or “(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.” The penalties for violations of § 401 (a) are set forth in § 401 (b). That subsection authorizes the imposition of terms of imprisonment, fines, and, in some instances, mandatory minimum terms of special parole. The range of permissible punishments varies depending on the nature of the controlled substance involved, and on whether the defendant has been convicted previously of a drug offense. The penalty provision at issue is § 401 (b)(1)(B). It states: “Except as otherwise provided in section 405 [which deals with distribution to minors], any person who violates subsection (a) of this section shall be sentenced as follows: “In the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine" } ]

[ { "docid": "3361227", "title": "", "text": "the conclusion that joinder was erroneous or prejudicial. Separate conspiracies with different memberships may still be joined if they are part of the same series of acts or transactions. United States v, McDaniel, 538 F.2d 408 (D.C. Cir. 1976). Since joinder was permissible under Rule 8(b), severance was in order only if undue prejudice was likely to result from a joint trial. Having considered the record carefully, we cannot say that the district court abused its discretion in denying the motion for severance. III ENTRAPMENT Gail also argues on appeal that the prosecution failed to rebut his defense of entrapment. Once the defendant submits some evidence that he was induced to commit thé crime, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979). The evidence showed that the agents were led to Gail by Ammirato, and that Gail sold the agents a weapon during their first meeting. Thereafter, Gail continued to do business with the agents with little encouragement and even proposed further illicit transactions. There is simply no merit to the contention that Gail was entrapped. IV GRASSES SPECIAL PAROLE TERM When Grassi appeared before the court for sentencing, the district judge imposed prison terms of five years on count 1 and ten years on count 2, to be served consecutively. One day later, the district judge determined that federal law required the imposition of a three year special parole term in addition to Grassi’s count 2 prison sentence. The special parole term was added to Grassi’s sentence by a written order of the district court. The punishment for Grassi’s count 2 conviction is prescribed by 21 U.S.C. § 963, which provides the same range of sentences for conspiracy as would apply for the underlying offense. The punishment for the importation of marijuana, the object of the count 2 conspiracy, includes a mandatory three year special parole term. 21 U.S.C. § 960. This circuit has held that the special parole term “may” be imposed on offenders convicted under section 963. United" }, { "docid": "13137250", "title": "", "text": "KEARSE, Circuit Judge: Petitioner pro se Barbara Walberg appeals from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, denying her petition pursuant to 28 U.S.C. § 2255 (1982) for an order vacating so much of her criminal sentence as imposed a special parole term in excess of her term of imprisonment. Walberg contended that such special parole terms are not authorized by the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the “Act”), 21 U.S.C. § 801, et seq. (1982), and violate the Due Process Clause of the Constitution. On appeal, she contends that the district court (1) did not consider the materials submitted in support of her petition and (2) erred in its conclusions. We disagree and affirm the order of the district court. I. Background In 1981, after a jury trial before Judge Mishler, Walberg was convicted of conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 963 (1982); of unlawful importation of heroin into the United States, in violation of 21 U.S.C. §§ 952 and 960; and of unlawful possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841. On September 17, 1981, she was sentenced to concurrent two-year terms of imprisonment on each count and eight years of special parole on the substantive counts. Her conviction was affirmed by this Court sub nom. United States v. Beltempo, 675 F.2d 472, cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). She apparently began serving her prison terms in 1983. In May 1984, while serving her prison terms, Walberg filed the present petition for habeas corpus, contending that her special parole term was unlawful insofar as it was to exceed the period of her incarceration. She relied on certain documents submitted in connection with legislative hearings prior to the passage of the Act and on the decision in United States v. Tebha, 578 F.Supp. 1398 (N.D.Cal.1984), appeal docketed, No. 84-1126 (9th Cir. Feb. 9, 1984), declaring the special parole requirement of the Act unconstitutional." }, { "docid": "20808564", "title": "", "text": "overt act in furtherance of the unlawful activity. United States v. Wander, 601 F.2d 1251, 1258 (3d Cir. 1979). The interstate element of section 1952 is not required under section 846 and the agreement element of section 846 is not required under section 1952. In the special context of narcotics offenses, we have recently held that convictions for conspiracy and the substantive offense under 21 U.S.C. §§ 841(a)(1), 846 (1976) are permissible. United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). By analogy from Wylie, we uphold the convictions for conspiracy and Travel Act violations. See United States v. Stevens, 612 F.2d 1226, 1231 (10th Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). B. Both Defendants’ Special Parole Terms Job argues, and the government concedes, that the special parole terms imposed on both defendants under 21 U.S.C. § 846 (Count I) are improper under Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980). In Bifulco, the Supreme Court held that section 846 does not authorize the sentencing court to impose a special parole term on a defendant convicted of conspiracy to manufacture or distribute a controlled substance. Id. at 400-01, 100 S.Ct. at 2259. We therefore vacate the special parole terms imposed on both defendants. Affirmed in part and vacated in part. . During trial, Silverman testified over objection to a prior transaction occurring between himself, Tonkowicz (“Tea Bags”), and Job one month before the arrests. Silverman and Tonkowicz had encountered one another at a mutual friend’s home. When Tonkowicz showed Silverman a pound of cocaine he had for sale, Silverman telephoned Job and went to Job’s home with a small sample. Several days later, Silverman and Tonkowicz returned to Job’s home, where Job gave Tonkowicz approximately $27,000. Another person at Job’s home, identified by Silverman as Tavelman, had gone to the back of the house before the exchange of money. . A “special parole term” is a term of two years minimum imposed in" }, { "docid": "4237134", "title": "", "text": "RE, Chief Judge: Appellant, James McHugh, appeals from a judgment of conviction entered against him on March 27, 1984, following a jury-trial in the United States District Court for the District of Rhode Island. Appellant was convicted of possession of marijuana with intent to distribute, in violation of section 2 of Title 18, United States Code and section 401 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841 (1982). Appellant was also convicted of conspiracy to distribute marijuana, in violation of section 406 of the Act. On September 7, 1984, appellant was sentenced to a five-year term of imprisonment and fined $15,000 on the conspiracy count of the indictment. On the possession count of the indictment, appellant received five years probation and a special parole term of four years. The appellant contends that the district court, 575 F.Supp. Ill (D.C.R.I.1983), erred in denying his pre-trial motion to suppress evidence that he alleges was illegally obtained. In addition, appellant contends that the trial judge improperly denied his motion for judgment of acquittal. Since we find the contentions of the appellant without merit, we affirm the judgment of conviction, the denial of motion for judgment of acquittal, as well as the imposition of the prison sentence, probation, fine, and special parole term ordered by the district court. The Facts During July of 1983, a waterfront residence, known as the Malone Camp, located along the Sakonnet River in Portsmouth, Rhode Island, was the target of investigative surveillance by the Rhode Island Drug Task Force, a joint task force comprised of Federal, state, and local law enforcement officers. On July 15,1983, the members of the Task Force engaged in active surveillance of the Malone Camp included deputy United States Marshal, Joseph Thomas, and Inspector Norman Phelps, who was employed by the state division of drug control. They were accompanied by Officer Coffey, a member of the Little Compton, Rhode Island, Police Department. The officers were aided in their duties by use of binoculars, telescopes, and a nightscope. All three officers were conducting their surveillance from the shore opposite" }, { "docid": "22687631", "title": "", "text": "and not this Court, to enact the words that will produce the result the Government seeks in this case. The judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to vacate the special parole term that was imposed upon petitioner. It is so ordered. The Act, Pub. L. 91-513, is set forth at 84 Stat. 1236-1296. For the sake of simplicity, further otherwise appropriate citations to the Statutes at Large will be omitted. This provision was amended in 1978, but the amendment is not perti nent to the issue presented here. See Pub. L. 95-633, § 201, 92 Stat. 3774, 21 U. S. C. §841 (b)(1)(B) (1976 ed., Supp. II). The Court of Appeals stated that petitioner was charged with two substantive violations of § 401 (a) (1), in addition to the conspiracy count, and that he was acquitted of the substantive charges. 600 F. 2d 407, 408 (CA2 1979). The parties agree, however, that this is error and that petitioner was charged with, and convicted on, a single conspiracy count. Brief for Petitioner 4, n. 2; Brief for United States 4, n. 2. Two Courts of Appeals, in addition to those followed by the Second Circuit in this case, have joined in the conclusion that § 406 authorizes the imposition of a special parole term where such a term is included in the penalty provisions of the target offense. See United States v. Sellers, 603 F. 2d 53, 58 (CA8 1979), and Cantu v. United States, 598 F. 2d 471, 472 (CA5 1979). In addition, in a number of cases appellate courts have affirmed the convictions of defendants sentenced to special parole terms under § 406 without considering the question whether special parole was authorized. For example, the question presented here may have lingered beneath the surface in United States v. Timmreck, 441 U. S. 780 (1979), In Mearns, the Third Circuit followed the lead of two District Court opinions (in addition to the opinion there under review) holding that special parole is not a penalty authorized by § 406." }, { "docid": "16933201", "title": "", "text": "55 L.Ed.2d 804 (1978). Because it is the trial judge who views juror conduct firsthand, reversal is only appropriate upon a demonstration of abuse of discretion. See United States v. Berry, 627 F.2d 193, 197 (9th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Avila-Macias, 577 F.2d 1384, 1387 (9th Cir. 1978). Our review of the record supports the trial court’s ruling. The dismissal was based on the form and procedure of Kim’s conduct and the court’s perception that Kim was both angry and opinionated. Whether Kim actually used the term “idiot” is irrelevant. Kim’s manner, without more, was sufficient to justify the court’s conclusion that Kim’s attitude could infect the jury. The trial judge acted within the appropriate limits of his discretion in appraising the probability of prejudice and the nature of any initiative he felt compelled to take. Avila-Macias, 577 F.2d at 1387. VI Ruvalcaba’s final contention is that the district court erred in imposing a special parole term in connection with his conviction for conspiracy in violation of section 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1265, 21 U.C.S. § 846 (1976). Because the Supreme Court recently held that a special parole term may not be imposed for a con viction of conspiracy under section 406, Bifulco v. United States, 447 U.S. 381, 400, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980), the special parole term imposed for the conspiracy conviction must be vacated. VII Having reviewed the record under the appropriate standards, we conclude that substantial nonhearsay evidence of conspiracy and Ruvalcaba’s link to it supports the trial court’s admission of the coconspirator statements. Moreover, we find that there is no meritorious confrontation clause objection to the introduction of the statements. It is also apparent that the district court’s dismissal of juror Kim was proper implementation of its responsibility to identify and isolate potentially contaminating influences on juror deliberation. In view of the Supreme Court’s recent pronouncement against imposing special parole terms in connection with conspiracy convictions under section 406," }, { "docid": "16933202", "title": "", "text": "for conspiracy in violation of section 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1265, 21 U.C.S. § 846 (1976). Because the Supreme Court recently held that a special parole term may not be imposed for a con viction of conspiracy under section 406, Bifulco v. United States, 447 U.S. 381, 400, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980), the special parole term imposed for the conspiracy conviction must be vacated. VII Having reviewed the record under the appropriate standards, we conclude that substantial nonhearsay evidence of conspiracy and Ruvalcaba’s link to it supports the trial court’s admission of the coconspirator statements. Moreover, we find that there is no meritorious confrontation clause objection to the introduction of the statements. It is also apparent that the district court’s dismissal of juror Kim was proper implementation of its responsibility to identify and isolate potentially contaminating influences on juror deliberation. In view of the Supreme Court’s recent pronouncement against imposing special parole terms in connection with conspiracy convictions under section 406, however, that part of the district court’s sentence must be vacated. AFFIRMED IN PART; REVERSED IN PART. . Federal Rule of Evidence 801(d)(2)(E) provides in part: “[A] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” . Unlike the Fifth Circuit, this court has declined to express a “preference” for pretrial determination of admissibility of the coconspirator’s statements. Compare United States v. Zemek, 634 F.2d 1159, 1169-1170 (9th Cir. 1980), with United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified en banc, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). . See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th Cir. 1980) (testimony that declarant received several phone calls a day probative of fact to be proved rather than any direct statement by declarant); United States v. Lobo, 516 F.2d 883, 884 n. 1 (2d" }, { "docid": "16933200", "title": "", "text": "day. Defense counsel immediately entered a motion for mistrial which the court denied. The next day, the trial judge interviewed juror Kim in chambers before opposing counsel. Although Kim claimed that she actually stated “it’s an idiom” and not “you’re an idiot” in response to the interpreter’s statement the day before, the court explained that she would have to be excused. Kim admitted that dismissal was understandable and stated that “[t]he problem has bothered me all my life, keeping my mouth shut.” Ruvalcaba claims that juror Kim’s dismissal was improper and requires a reversal of his conviction for two reasons: (1) there was insufficient cause to dismiss Kim; and (2) by dismissing Kim, the court inhibited the remaining jurors thereby depriving Ruvalcaba of an impartial jury. The law does not support Ruvalcaba’s contention. It is the trial court’s responsibility affirmatively to detect potentially contaminating influences on juror deliberations and implement appropriate measures to remedy juror misconduct. United States v. Abascal, 564 F.2d 821, 833-34 (9th Cir. 1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978). Because it is the trial judge who views juror conduct firsthand, reversal is only appropriate upon a demonstration of abuse of discretion. See United States v. Berry, 627 F.2d 193, 197 (9th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Avila-Macias, 577 F.2d 1384, 1387 (9th Cir. 1978). Our review of the record supports the trial court’s ruling. The dismissal was based on the form and procedure of Kim’s conduct and the court’s perception that Kim was both angry and opinionated. Whether Kim actually used the term “idiot” is irrelevant. Kim’s manner, without more, was sufficient to justify the court’s conclusion that Kim’s attitude could infect the jury. The trial judge acted within the appropriate limits of his discretion in appraising the probability of prejudice and the nature of any initiative he felt compelled to take. Avila-Macias, 577 F.2d at 1387. VI Ruvalcaba’s final contention is that the district court erred in imposing a special parole term in connection with his conviction" }, { "docid": "13236285", "title": "", "text": "in the preparation of Preludin for distribution, and evidence of the identities of members of the conspiracy and persons who might have control over the searched premises. Both affidavits contain statements of reliable informants who had seen drugs on the premises named in the search warrants. The affidavits also showed that the drugs in the residences were there as a result of a drug trafficking conspiracy. Giving the affidavits a “sensible” and “pragmatic reading,” we conclude they adequately justified the magistrate in issuing warrants to search the premises for paraphernalia necessary to a drug distribution network and for evidence of the participants in the conspiracy or persons in control of the premises. J. Sentencing Carl Lynch and Emma Jean Ward argue that their cases must be remanded to the district court for resentencing because of a recent Supreme Court case. In Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), the Court held that a special parole term may not be imposed as a penalty for a conspiracy conviction under the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 801 et seq. The Government agrees that Bifulco requires the vacation of any sentence on the conspiracy count which included a special parole term. Government’s Brief at 90 n.106. We thus remand to the district court so that Lynch and Ward, as well as any other appellant who might have received a sentence prohibited by Bifulco, can be re-sentenced on the conspiracy count. III. CONCLUSION We have fully considered the other arguments made by appellants and conclude that all are without merit. Thus, we remand to permit the necessary resentencing and otherwise affirm. Judgment accordingly. . An earlier trial ended in a mistrial when Judge Flannery took ill and no other district judge was available to replace him. After the case was reassigned to Judge Oberdorfer, appellants claimed double jeopardy and moved to dismiss. Judge Oberdorfer denied the motion, and this court affirmed. United States v. Lynch, 598 F.2d 132 (D.C.Cir.1978), aff’g 467 F.Supp. 575 (D.D.C.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1287," }, { "docid": "22080362", "title": "", "text": "see Delap v. Dugger, 890 F.2d 285, 302 n. 20 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990); Boykins v. Wainwright, 737 F.2d 1539, 1545 (11th Cir.1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985), and because, in any event, we can readily conclude that Jordan’s claim has no merit. II. Jordan was convicted of one count of violating 21 U.S.C. § 846. At the time of his offense, 21 U.S.C. § 846 provided that: Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. Pub.L. No. 91-513, Title II, § 406, 84 Stat. 1265 (Oct. 27, 1970). Relying upon Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247 (1980), Jordan argues that a sentence of supervised release was not within the permissible statutory penalties for a violation of § 846. Bifulco concerned whether the imposition of a special parole term was an authorized sentence under the same version of § 846. At the time Bifulco was decided, the statute governing the commission of the substantive offense, 21 U.S.C. § 841(a), explicitly authorized the imposition of a special parole term; 21 U.S.C. § 846, the criminal statute outlawing conspiracy to commit the substantive offense, did not. Looking to three factors — “the language and structure, legislative history, and motivating policies of the [Comprehensive Drug Abuse Prevention and Control] Act [of 1970]”, id. at 387, 100 S.Ct. at 2252 — and applying the rule of lenity, the Court concluded that because 21 U.S.C. § 846 did not explicitly authorize the imposition of special parole terms as punishment for those convicted of conspiracy, no special parole terms could be imposed. Pursuant to the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, Congress replaced the special parole terms referenced as permissible punishment for violations of 21 U.S.C. § 841 with terms of “supervised release.”" }, { "docid": "16933179", "title": "", "text": "TANG, Circuit Judge: I Appellant Ruvalcaba-Villalobos was convicted of conspiracy to distribute cocaine and distribution of cocaine. On appeal he contends: (1) there was insufficient evidence of conspiracy and his connection to it to justify the admission of certain statements under the coconspirator exception to the federal hearsay rules; (2) his Sixth Amendment right to confront witnesses was violated by the admission of the coconspirator’s statements; (3) the trial court erred in dismissing a juror; and (4) the trial court erred in sentencing him to a special parole term in connection with his conspiracy conviction under 21 U.S.C. § 846. Our review indicates that the district court must be affirmed on the first three issues. Because the Supreme Court recently ruled that a special parole term may not be imposed in connection with conspiracy conviction under 21 U.S.C. § 846, however, the district court’s sentence must be vacated to the extent that it contains such a term. II On November 26, 1979, a government informer, Catalino Nunez, met with Jose Perez for the purpose of negotiating a drug sale. Perez had told Nunez that he could sell him large quantities of drugs. In order to maintain contact, Nunez and Perez exchanged phone numbers. After this first meeting Nunez contacted Special Agent Cazares of the Drug Enforcement Administration. A second meeting was arranged and on November 27, 1979, Cazares and Nunez met with Perez at the Stockton Holiday Inn. At this meeting, Perez told Cazares and Nunez that he could get one or two kilograms of cocaine from his brother-in-law, Ruvalcaba-Villalobos (Ruvalcaba), to sell to Nunez and Cazares. Perez also stated that he had five ounces of heroin that he had received from Ruvalcaba. Cazares agreed to buy it. Perez left the hotel and returned shortly thereafter and gave the heroin to Cazares with the understanding that Cazares would pay for it at a later meeting. The three men met for a third time on November 29, 1979, when Cazares paid Perez $800.00 for the heroin he had previously obtained. At a fourth meeting between Nunez and Perez on December 8," }, { "docid": "2498931", "title": "", "text": "OPINION OF THE COURT WEIS, Circuit Judge. The Comprehensive Drug Abuse Prevention and Control Act of 1970 provides for the imposition of a special parole period in addition to imprisonment for substantive violations of the Act. The conspiracy section, however, lists only fine and imprisonment as punishment, and the district court concluded that it was not permitted to impose a special parole term for that violation. We agree and affirm. Defendants were indicted on two counts of distribution and one count of possession of cocaine with intent to distribute, violations of 21 U.S.C. § 841(a). In addition, they were charged with conspiracy to possess and distribute cocaine, proscribed by 21 U.S.C. § 846. As the result of an agreement with the government, defendants pleaded guilty to the conspiracy count, and the other charges were dismissed. Each then received a sentence of six months incarceration, followed by a special parole term of three years. After defendant Mearns completed his prison term, he moved to correct his sentence under Fed.R.Crim.P. 35, alleging that the statute did not sanction the imposition of the special parole term on a conspiracy conviction. The district court concurred and deleted the parole requirement. United States v. Mearns, 461 F.Supp. 641 (D.Del.1978). A few days later, defendants Thomas and Hedley moved for, and were granted, the same relief. The government then took this appeal. - Sections 841 and 846 are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, which revamped the federal drug laws. An aim of this statutory revision was to provide “an overall balanced scheme of criminal penalties for offenses involving drugs.” H.R.Rep. No. 1444, 91st Cong., 2d Sess. 1, reprinted in [1970] U.S. Code Cong. & Admin.News, pp. 4566, 4567. Thus, the language chosen by Congress for each penalty provision reflects a fully considered judgment and should be read carefully. Turning then to the statutory language, 21 U.S.C. § 846 in pertinent part provides: “Any person who . . conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or" }, { "docid": "3029586", "title": "", "text": "908, 97 S.Ct. 1705, 52 L.Ed.2d 393. In addition, this court has found that Congress intended to impose dual punishments for conspiracies which violate two different sections of this same Act. United States v. Marotta, 518 F.2d 681, 685 (9th Cir. 1975) (defendant was convicted for conspiring to distribute marijuana under 21 U.S.C. § 846 and conspiring to import the same marijuana under 21 U.S.C. § 963). Based on the preceding, we conclude that Congress did intend to allow the courts to impose consecutive sentences for conspiracy (21 U.S.C. § 846), and for substantive offenses (21 U.S.C. § 841(a)(1)), even when the proof necessary to obtain a conviction for the former was necessary to obtain a conviction for the latter offense. Because we make this finding, we do not apply the Blockburger test for ascertaining the legislative intent. The consecutive sentences imposed upon Perluss were therefore proper. III. THE BIFULCO PROBLEM After argument and submission of these appeals, the Supreme Court decided Bifulco v. United States, - U.S. -, 100 S.Ct. 2247, 64 L.Ed.2d-(1980). The sentences imposed upon Bachrach, Wylie and Perluss on Count I, the conspiracy count, carried a special parole term of five years. Under Bifulco, the district court was without power to impose the special parole term on Count I. This issue was not raised by any defendant in this case. Nevertheless, we recognize the sentencing defect and vacate the special parole term imposed on each defendant under Count I. IV. CONCLUSION The defendants were participants in a large business enterprise which manufac tured and distributed LSD. In order to prevent such business operations from flourishing, a limited amount of government infiltration through undercover agents must be tolerated. While the penalties which were imposed on the defendants may have been severe, they were amply justified by the large scale nature of the illegal enterprise and the roles performed by the respective defendants. The convictions of the defendants are AFFIRMED. The special parole term imposed on each defendant under Count I is VACATED. . Goetz was also tried and convicted of the charges against him for his role" }, { "docid": "16933183", "title": "", "text": "On December 12th, Perez informed Cazares by telephone that Ruvalcaba had arrived with the cocaine. Ruvalcaba spoke with Cazares during the same call and confirmed the information. Later that afternoon Perez met with Cazares and Nunez to exchange the cocaine. After Cazares received the cocaine from Perez, he field tested it and determined that it was in fact cocaine. Perez indicated that Ruvalcaba and Alvarez-Yanez were at his apartment and that he would make the payment at the grocery store where he worked. Subsequently, Perez, Alvarez-Yanez and Ruvalcaba were arrested. Cazares recognized Ruvalcaba’s voice and identified him as the individual he had spoken with over the telephone. Ruvalcaba was tried before a jury and found guilty of conspiring to distribute co caine, 21 U.S.C. § 846 (1976), and of distributing cocaine, 21 U.S.C. § 841 (1976). He received two sentences of twelve years in prison for each count, the sentences to run concurrently. Additionally, a special parole term of five years was imposed for each count. Ill Defendant Ruvalcaba first argues that because there was insufficient evidence of the conspiracy and his link to it, the district court erred in admitting oral statements made by Perez under the coconspirator exception of the federal rules of evidence. See generally Fed.R.Evid. 801(d)(2)(E). We affirm the district court’s ruling. The statements at issue were made by Perez in the presence of Cazares and Nunez on November 27 and 29, December 8, 10, 11 and 12. The statements directly implicated Ruvalcaba. Ruvalcaba also objected on the same basis to the admission of statements by Alvarez-Yanez. The admissibility of the statements was argued prior to the defendants’ trial. At that point, the court ruled that the statements could be admitted, subject to a mistrial should the prosecution fail to lay a proper foundation. Ruvalcaba argues that the trial court erred in admitting the testimony because the only evidence establishing the conspiracy and linking him to it consisted of Perez’ statements and his own. The government argues that ample evidence supports the lower court’s ruling. Federal Rule of Evidence 801(d)(2)(E) requires proof of three elements: (1)" }, { "docid": "15736086", "title": "", "text": "also imposed. Thus, a parole term may never be imposed without imprisonment; it must always accompany imprisonment. Section 841(c) provides, in addition, that violation of the special parole may result in an increase in the original term of imprisonment to the extent of the length of the special parole term. The nature of criminal enterprises prohibited by section 846 and the penalties for violation of that section are both defined with reference to section 841. “[T]he terms ‘imprisonment or fine or both’ only have meaning by reference to the sentences imposed under substantive offense statutes.” United States v. Burman, supra, 584 F.2d at 1358. Thus the entire punishment provision of section 841 should be considered to be incorporated into section 846. We think that this view represents a rational interpretation of the language “the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy,” 21 U.S.C. § 846 (emphasis added). Finally, William Monroe objects to his sentence as excessive. The thrust of Monroe’s argument is that he should have received a lighter sentence than that given certain other defendants whose participation in the conspiracy Monroe characterizes as greater than his and who have prior criminal records. We customarily do not substitute our own judgment for that of the district court in sentencing decisions. United States v. Lincoln, 589 F.2d 379, 380 n.2 (8th Cir. 1979). Monroe’s sentence was within the statutory limits and does not reflect an abuse of discretion. The judgment of the district court is affirmed. . The Honorable William Hanson, Senior United States District Judge for the Southern District of Iowa. . Defendant Donald Allen does not contest the sufficiency of the evidence linking him to the Hobbs conspiracy. . We decline defendants’ request that we take this opportunity to abandon the traditional rule that “[o]nce there is satisfactory proof that a conspiracy exists, a particular individual’s participation therein may be established by evidence that otherwise seems slight.” United States v, Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d" }, { "docid": "2498932", "title": "", "text": "sanction the imposition of the special parole term on a conspiracy conviction. The district court concurred and deleted the parole requirement. United States v. Mearns, 461 F.Supp. 641 (D.Del.1978). A few days later, defendants Thomas and Hedley moved for, and were granted, the same relief. The government then took this appeal. - Sections 841 and 846 are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, which revamped the federal drug laws. An aim of this statutory revision was to provide “an overall balanced scheme of criminal penalties for offenses involving drugs.” H.R.Rep. No. 1444, 91st Cong., 2d Sess. 1, reprinted in [1970] U.S. Code Cong. & Admin.News, pp. 4566, 4567. Thus, the language chosen by Congress for each penalty provision reflects a fully considered judgment and should be read carefully. Turning then to the statutory language, 21 U.S.C. § 846 in pertinent part provides: “Any person who . . conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the . . . conspiracy.” The punishment provided for the offenses of distributing and possession with intent to distribute cocaine is found in 21 U.S.C. § 841(b)(1)(A) and consists of imprisonment for not more than 15 years, a maximum fine of $25,000, or both. In addition, this subsection continues: “Any sentence imposing a term of imprisonment under this paragraph shall . . . impose a special parole term of at least 3 years in addition to such term of imprisonment . . .” We note first that § 846 does not mention parole, but refers only to punishment by fine, imprisonment, or both. The maximum limitations are determined by reference to the earlier sections pertaining to the substantive offenses. The substantive section applicable here, § 841, prescribes not only imprisonment, fine or both but when imprisonment is imposed, it mandates an additional special parole term. Thus, while the conspiracy section provides for two forms of." }, { "docid": "10762983", "title": "", "text": "determined from the facts charged in the indictment, and the facts pleaded may bring the offense within one statute, although another statute is referred to in the indictment. Enzor, supra, at 174. The indictment in this case expressly charged conspiracy to violate 21 U.S.C. § 841(a)(1), a provision of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Section 846 of this Title provides that conspiracy to commit an offense defined in the Act is punishable to the same degree as the offense which was the object of the conspiracy. Notwithstanding the reference to 18 U.S.C. § 371 in the caption, the allegations of the indictment clearly put appellant on notice of the sentencing provisions applicable to 21 U.S.C. § 846. We conclude that appellant suffered no prejudice as a result of any miscitation in the indictment. Kennington also received a special parole term of three years to begin upon completion of his prison sentence. We note sua sponte, that since the imposition of sentence in this case, the Supreme Court has held that it is improper for a court to sentence a defendant found guilty under 21 U.S.C. § 846 to a special parole term. Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980). Accordingly, the district court, following the issuance of the mandate, must amend appellant’s sentence to delete the special parole term. AFFIRMED with instruction. . The sentence was later reduced to nine years. . The original order of commitment stated that appellant received a ten-year sentence under 18 U.S.C. § 371. One month later, the trial court amended the order to reflect that the sentence was imposed under 21 U.S.C. § 846." }, { "docid": "13768086", "title": "", "text": "the offense charged in the indictment, when the indictment was filed, and when defendant pleaded guilty to the charge in the indictment. Thus, it was entirely proper and appropriate for the Court to impose a special parole term at defendant’s sentencing. Indeed, since a term of imprisonment was imposed by the Court, special parole was not only an allowable sentence, but a mandatory one under Section 841(b)(1)(B). In Bifulco, the Supreme Court held that 21 U.S.C. § 846, which makes it an offense to conspire to manufacture or distribute a controlled substance, as defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, does not authorize the imposition of a special parole term as punishment for those convicted of a drug conspiracy. Id. at 400-01, 100 S.Ct. at 2258-59. Bifulco and others had been charged in the Eastern District of New York in a single count indictment with violating § 846 by conspiring to violate 21 U.S.C. § 841(a)(1) by manufacturing, distributing and possessing substantial quantities of phencyclidine, a Schedule III controlled substance. Following the jury’s verdict of guilty, Bifulco was sentenced to a four-year term of imprisonment, a fine of $1,000 and a five-year term of special parole; the conviction was affirmed by the Second Circuit in an unpublished order. Subsequently, Bifulco filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate his sentence as illegal, on the ground that § 846 does not authorize the imposition of a special parole term. The district court held that Bifulco had been properly sentenced, and dismissed his petition. The Second Circuit affirmed, 600 F.2d 407 (2d Cir.1979) (per curiam), holding, consistent with the positions of two other Courts of Appeals, see United States v. Burman, 584 F.2d 1354, 1356-58 (4th Cir.1978), cert denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979) and United States v. Jacobson, 578 F.2d 863, 867-68 (10th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978), that § 846 authorizes the imposition of a special parole term. Shortly after the Second Circuit’s decision, the Third Circuit" }, { "docid": "1330465", "title": "", "text": "of Schaefer as to whether Schaefer became “nervous” about carrying cocaine on airplanes; and (5) Brenner’s statement to the IRS that Brenner’s agreement to act as trustee — just like O’Duggan —for the West Brewster and the Mark and Stephen Realty trusts was intended “probably to disguise the true ownership of the property” from the IRS. While O’Duggan seeks to diminish the weight of this evidence, by either labeling it as mere hearsay or asserting that the government has drawn unsupportable inferences from the record, we find these claims to be unpersuasive. The statements O’Duggan characterizes as “hearsay” were admissions made by co-conspirators in furtherance of and during the course of the conspiracy. As such they presumptively were reliable and admissible under Fed.R. Evid. 801(d)(2)(E). Moreover, the limited inferences drawn from the facts were supported by the cumulative weight of the evidence. In short, ample evidence supported O’Duggan’s conviction on Count VII. We hold that Count VII stated an offense with sufficient specificity; that there was no need for a bill of particulars with respect to Count VII; and that there was sufficient evidence to establish O’Duggan’s knowledge of and participation in the conspiracy. IV. This brings us to Tarvers’ claim that the court erred in sentencing him to special parole terms on Count I, which charged a violation of the CCE statute, 21 U.S.C. § 848, and on Counts III and IV, which charged substantive cocaine violations under 21 U.S.C. § 841. We agree that the court should not have imposed a special parole term on Count I, but we uphold the special parole terms imposed on Counts III and IV. Tarvers cites United States v. Grammatikos, 683 F.2d 1013, 1025 (2d Cir.1980), which holds that under § 848 “special parole may not be imposed”, see also Bifulco v. United States, 447 U.S. 381, 398-99 (1980) (special parole unavailable for sentencing under conspiracy statute, 21 U.S.C. § 846). He then argues that we should vacate all his special parole terms, even though Counts III and IV charged violations of § 841, not § 848. The government concedes that, even" }, { "docid": "13768085", "title": "", "text": "Schedule II controlled substance, to wit, one vial containing “crack” form cocaine, within 1000 feet of a public elementary school, and aiding and abetting in the commission of said offense, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 845a; and 18 U.S.C. § 2. On December 1, 1986, the Court sentenced defendant to five years’ imprisonment on count one; to a six-year special parole term to be served upon completion of the prison sentence imposed; and assessed defendant the special mandatory assessment of $50. In addition, the Court dismissed count two of the indictment, without objection by the Government. DISCUSSION Relying on Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) and its progeny, defendant argues that the six-year special parole term was improperly imposed by the Court because special parole was deleted from 21 U.S.C. § 841(b)(1)(B) by Congress in the Comprehensive Crime Control Act of 1984. As discussed more fully below, the deletion of special parole from Section 841(b)(1)(B) was not in effect when defendant committed the offense charged in the indictment, when the indictment was filed, and when defendant pleaded guilty to the charge in the indictment. Thus, it was entirely proper and appropriate for the Court to impose a special parole term at defendant’s sentencing. Indeed, since a term of imprisonment was imposed by the Court, special parole was not only an allowable sentence, but a mandatory one under Section 841(b)(1)(B). In Bifulco, the Supreme Court held that 21 U.S.C. § 846, which makes it an offense to conspire to manufacture or distribute a controlled substance, as defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, does not authorize the imposition of a special parole term as punishment for those convicted of a drug conspiracy. Id. at 400-01, 100 S.Ct. at 2258-59. Bifulco and others had been charged in the Eastern District of New York in a single count indictment with violating § 846 by conspiring to violate 21 U.S.C. § 841(a)(1) by manufacturing, distributing and possessing substantial quantities of phencyclidine, a Schedule III controlled substance." } ]

[ { "docid": "2592170", "title": "", "text": "the mailing did not take place until after the defendant had induced the parties named to accept his fraudulent check for merchandise. He had thus accomplished all he set out to do in falsely representing that he had money on deposit in the banks. McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669. In Stewart v. United States, 8 Cir., 119 F. 89, 95, Circuit Judge Thayer said this on the point: “Another observation to be made concerning the indictment is this: That while the fraudulent scheme, as described, was one whereby the mails were to be employed to induce persons to come to Webb City, to be afterwards defrauded, yet the letter which was deposited in the mails by Gillett, on which the third count is founded, does not seem to have been written to accomplish any such purpose, and for that reason it can hardly be said to have been deposited in the mail in execution of such a scheme as the indictment describes. It was written, as it seems, long after Davis had been induced to go to Webb City and after he had wagered his money and sustained all the loss that he could possibly sustain by reason of the alleged fraudulent scheme.” Moreover, it can not be reasonably contended that there was one fraudulent scheme that extended to all the persons who were induced to cash defendant’s checks. Each person who did so was separately defrauded by representations made to him alone, ¿tie pleader so charged them, and the Grand Jury found that each count was a separate offense. The defrauding of one had no connection with the defrauding of another. The mailing of a check in each count seems self-contradictory. Each count charges that the defendant caused to be placed in the post office of the United States at Lake Providence, Louisiana, to be sent and delivered by said post office establishment to the said Bent County" } ]

[ { "docid": "11940433", "title": "", "text": "letter of credit were then sent by the Pauls Valley bank by railway express to its correspondent, Liberty National Bank at Oklahoma City, Okla., which bank forwarded it to Fort Worth National Bank of Fort Worth, Texas, for collection. The Fort Worth bank, in the regular course of its business, mailed Christian’s check and letter of credit, with an accompanying collection letter, to the Tyler bank. The mailing of this letter by the Fort Worth Bank at Fort Worth, Texas, is the basis of the indictment. The law is well settled that if a person devises a scheme to defratid, in the execution of which a letter is mailed, the crime denounced by the statute is committed. It is immaterial whether the person or persons devising the scheme had intended to use the mails or whether anybody was actually defrauded. The mailing of the letter may be by an innocent agent, unconnected with the schemers. Hart v. United Stales, 5 Cir., 112 F.2d 128, and authorities cited therein. However, the mealing or causing the letter to be mailed is the crime, not merely devising the fraudulent scheme, and it is vital to the commission of the offense that the letter be in furtherance of the scheme. In this case it is apparent the purpose of the scheme to defraud Christian had been completely accomplished when the Pauls Valley Bank accepted his check on the Tyler bank and the money was paid to Rudder. Christian was then and there defrauded. Up to that point the mails had not been used at all. Christian could not have legally done anything to stop payment of his check and was obligated to reimburse the Pauls Valley Bank for cashing it. While the mails were incidentally used, the defendants had no interest whatever in that transaction. None of the banks involved, was their agent, innocent or otherwise. The mailing of the letter from Fort Worth to Tyler was not in furtherance of the scheme and was not “caused” by them. The facts do not support the conviction. Spillers v. United States, 5 Cir., 47 F.2d" }, { "docid": "11960418", "title": "", "text": "that in each instance the mails were used only after the transaction had been completed and the money paid by the victims to the appellant, and that the mailing of the leases after they had been sold by the appellant to the so-called victims to the Commissioner of Public Lands at Santa Fe for recordation, and the return of the leases to the purchaser after recordation, was not in furtherance of the scheme within the intent and meaning of Section 215, 18 U.S.C.A. § 338. It is well established that the use of the mails after the scheme has been fully consummated and completed in all of its parts cannot supply the essential ingredient for an offense under Section 215, 18 U.S.C.A. § 338. Mitchell v. United States, 10 Cir., 118 F.2d 653; Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill v. United States, 9 Cir., 95 F.2d 669; Stewart v. United States, 8 Cir., 119 F. 89. But as this court observed in Mitchell v. United States, supra, an entirely different situation is presented when the indictment charges, as it does here, that the scheme so devised was a continuing scheme which included as an essential element thereof the approval and recordation of the assignments of the leases sold, and the return of the same to the purchaser; and that the use of the mails was contemplated and were used to accomplish this purpose. Corbett v. United States, 8 Cir., 89 F.2d 124; United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836; Preeman v. United States, 7 Cir., 244 F. 1, certiorari denied 245 U.S. 654, 38 S.Ct. 12, 62 L.Ed. 533. Or where it is charged, as here, that the mails were used .for the purpose of lulling the victims into a false sense of security to avoid apprehension. Preeman v. United States, supra; Newingham v. United States, 4 F.2d" }, { "docid": "5977362", "title": "", "text": "and a purpose to use the mails is no longer an essential element of the scheme devised, as it was under the former statute. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548; Trent et al. v. United States, 8 Cir., 228 F. 648; Farmer v. United States, 2 Cir., 223 F. 903, certiorari denied 238 U.S. 638, 35 S.Ct. 940, 59 L.Ed. 1500; Preeman v. United States, 7 Cir., 244 F. 1; Depew et al. v. United States, 3 Cir., 255 F. 539; Smith v. United States, 8 Cir., 267 F. 665; Bogy v. United States, 6 Cir., 96 F.2d 734; Guardalibini v. United States, 5 Cir., 128 F.2d 984. It is immaterial whether the persons devising the scheme had intended to use the mails or whether anyone was actually defrauded. The mailing of the letter may be by an innocent agent, unconnected with the schemers. Stapp et al. v. United States, 5 Cir., 120 F.2d 898. Where a party participating with others in a scheme to defraud presents a check to a branch bank in effecting the scheme, and it can be reasonably foreseen that the check will pass through the mails to be paid, it is sufficient to charge and show that the fraudulent scheme was one which reasonably contemplated the use of the mails. In such a case, the party presenting the check “causes” the mails to be used in furtherance of a scheme to defraud; and all of those participating in the scheme, being partners in crime, are chargeable with his conduct in the matter; Hart v. United States, 5 Cir., 112 F.2d 128; and where those connected with a scheme to defraud must have anticipated and known that the mails would be used in its execution as a matter of course, the use of the mails by one or more of the parties in effecting the scheme, becomes the act of each of the co-participants. Ader v. United States, 7 Cir., 284 F. 13. If the use of the mails is such a natural and probable consequence of the execution" }, { "docid": "9487671", "title": "", "text": "v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669; see, also, Mitchell v. United States, 10 Cir., 118 F.2d 653. In each of these cases, the defect in the indictment or the proof in support thereof was challenged by appeal and not by habeas corpus, and are not controlling in the determination of the question presented here. We do not think that the allegations of the indictment affirmatively show that the fraudulent scheme was fully consummated when the money was paid over by the person to be defrauded, or that the offense described in the indictment was impossible of execution. The indictment does describe an offense under Section 338, Title 18 U.S.C.A., and is not vulnerable to attack here. Creech v. Hudspeth, 10 Cir., 112 F.2d 603. Cf. Dyhre v. Hudspeth, supra. The order denying the writ of habeas corpus is affirmed. Section 215 of the Criminal Code, Title 18, Section 338, U.S.C.A.: “Whoever, having devised or intending to devise any scheme * * * to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place or cause to be placed * * * in any post office * * * or shall knowingly causo to be delivered by mail * * * any such letter * * * shall be fined not more than $1,000, or imprisoned not more than five years, or both.”" }, { "docid": "5977361", "title": "", "text": "Act of March 2,1889, 25 Stat. 873). But this section was thereafter amended and became § 215 of the Criminal Code (Act of March 4, 1909, c. 321, 35 Stat. 1088, 1130, § 338, Title 18 U.S.C.A.). Under the former statute, the elements of the offense were that the persons charged in the indictment must have devised a scheme to defraud and intended to effect it by the use of the mails, as well as have used the mails to carry it into effect. The difference between the two statutes is that under the former, the scheme must have contemplated the use of the mails; and under the latter, it is only necessary that a party devised a scheme to defraud and, afterward, placed or caused to be placed a letter in the mails for the purpose of executing the same. Morris v. United States, 8 Cir., 7 F.2d 785. Under § 215 of the Criminal Code, it is sufficient that, having devised a scheme to defraud, the mails are actually used in effecting it; and a purpose to use the mails is no longer an essential element of the scheme devised, as it was under the former statute. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548; Trent et al. v. United States, 8 Cir., 228 F. 648; Farmer v. United States, 2 Cir., 223 F. 903, certiorari denied 238 U.S. 638, 35 S.Ct. 940, 59 L.Ed. 1500; Preeman v. United States, 7 Cir., 244 F. 1; Depew et al. v. United States, 3 Cir., 255 F. 539; Smith v. United States, 8 Cir., 267 F. 665; Bogy v. United States, 6 Cir., 96 F.2d 734; Guardalibini v. United States, 5 Cir., 128 F.2d 984. It is immaterial whether the persons devising the scheme had intended to use the mails or whether anyone was actually defrauded. The mailing of the letter may be by an innocent agent, unconnected with the schemers. Stapp et al. v. United States, 5 Cir., 120 F.2d 898. Where a party participating with others in a scheme to defraud presents a" }, { "docid": "16954034", "title": "", "text": "United States mail must be used “for the purpose of executing such scheme or artifice or attempting so to do.” It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the ground that the indictment shows on its face that the use of the mails relied upon by the Government in each count was not for the purpose of executing the scheme or artifice charged, but on the contrary occurred after the completion of the alleged scheme and at a time when the fraud, if any existed, had been fully perpetrated. Defendant relies upon the well settled rule that the mailing of a letter or check, even though connected with or relating to a scheme to defraud, if not for the purpose of executing the scheme, will not support an indictment under the statute. If the scheme charged was completed before the mail was used the offense denounced by Section 215 of the Criminal Code does not exist. Stapp et al. v. United States, 5 Cir., 120 F.2d 898; Spillers v. United States, 5 Cir., 47 F.2d 893; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; McNear v. United States, 10 Cir., 60 F.2d 861; McLendon v. United States, 6 Cir., 2 F.2d 660; United States v. Dale, D.C., 230 F. 750; United States v. Leche, D.C., 34 F.Supp. 982, 986; United States v. Siebricht, 2 Cir., 59 F.2d 976; Mitchell v. United States, 10 Cir., 118 F.2d 653. The scheme charged in the indictment was one to defraud Edsel B. Ford. Count 1 relies upon the mailing on November 26, 1938, of a cashier’s check for $5,000 dated November 18, 1938, payable to Frank McKay and endorsed by him. This is obviously the proceeds of the alleged fraudulent scheme; it is equally obvious that it is not the check of the victim. It follows that any money obtained from the victim by means of any fraudulent scheme had been obtained and was a" }, { "docid": "5702344", "title": "", "text": "acquitted Mitchell on four counts of mail fraud and reached no verdict on three remaining counts. We affirm the convictions. I Mitchell contends that the indictment was subject to dismissal because it failed to charge an offense. To charge a violation of 18 U.S.C. § 1341, the indictment was required to allege facts from which two elements could be found: (1) the formation of a scheme or artifice to defraud, and (2) use of the mails in furtherance of the scheme. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). Mitchell argues that the indictment did not allege that the mailings were made in furtherance of the scheme. Mitchell was convicted on six counts of mail fraud. Count 5 was based upon a notice sent by the planning commission to the owner of the apartment complex to advise him that the commission would rehear the conversion proposal. Counts 6 through 8 were based upon notice of the rehearing sent to tenants of the apartment complex. Counts 9 and 10 were based upon notices sent by the planning commission and the city council, respectively, advising the owner of the complex that the conversion project had been approved. Mitchell argues that each of these mailings was routine, intrinsically innocent, and required by law and that they therefore were not made in furtherance of the scheme to defraud. To violate section 1341, mailings need not be an essential part of the scheme, but they must be made or caused to be made for the purpose of executing the scheme. United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974); Bohonus, 628 F.2d at 1173. This requirement is satisfied if the completion of the scheme or the prevention of its detection is in some way dependent upon the mailings. See United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir.1977). Each of the" }, { "docid": "3210758", "title": "", "text": "PHILLIPS, Circuit Judge. Rude and Heller were tried, convicted, and sentenced for violations of section 215 of the Criminal Code, 18 USCA, § 338. The indictment contained four counts. The first count set out the general scheme, and the mailing of a postal card in furtherance of such scheme. Each of the other counts alleged by reference to count one the same general scheme, and the mailing of another postal card in furtherance thereof. The defendants challenged the sufficiency of the indictment by demurrers and motions in arrest of judgment, and assign as error adverse rulings thereon. While the formation of a scheme or artifice to defraud is 'an essential element of the offense under section 215, supra, the gist of the offense is the use of the mail for the purpose of executing or attempting to execute such scheme, and such scheme need not be pleaded with all the certainty as to time, place, and circumstances required in charging the use of the mails. Havener v. United States (C. C. A. 10) 49 F.(2d) 196, 198; Brady v. United States (C. C. A. 8) 24 F.(2d) 397; Cochran v. United States (C. C. A. 8) 41 F.(2d) 193; Mathews v. United States (C. C. A. 8) 15 F.(2d) 139; Chew v. United States (C. C. A. 8) 9 F.(2d) 348; Gould v. United States (C. C. A. 8) 209 F. 730; Cowl v. United States (C. C. A. 8) 35 F.(2d) 794. But the scheme or artifice to defraud must be set forth with sufficient particularity to apprise the accused of the nature of the accusation and to enable him to prepare his defense. United States v. Hess, 124 U. S. 483, 486, 8 S. Ct. 571, 31 L. Ed. 516. The substance of the charge with respect to the scheme is that defendants would mail to persons to be defrauded, to induce them to come to defendants’ store, postal cards with samples of fine woolen cloth attached, falsely representing that suits of such material could be purchased for $10, and that unclaimed suits of the value of $25" }, { "docid": "11960417", "title": "", "text": "and the public generally is not open to question or doubt. Neither can it be said that the mails were not used or caused to be used by the appellant in connection with or corollary to the scheme. The only question is whether the use of the mails as shown by the proof was an ingredient of the scheme, that is, whether the use of the mails is so closely associated with the transactions as to become a part of the scheme as devised. The appellant contends that each transaction as related to each count of the indictment was separate and distinct, and not related to any other; that the proof does not support a continuing scheme to defraud as alleged in the indictment, consequently the use of the mails as proven is no part of the scheme, was not essential to the consummation of it, and therefore does not constitute an offense under the mail fraud statute. Particularly with reference to counts 1, 2, 3, 4, 5, 6, and 8, it is earnestly contended that in each instance the mails were used only after the transaction had been completed and the money paid by the victims to the appellant, and that the mailing of the leases after they had been sold by the appellant to the so-called victims to the Commissioner of Public Lands at Santa Fe for recordation, and the return of the leases to the purchaser after recordation, was not in furtherance of the scheme within the intent and meaning of Section 215, 18 U.S.C.A. § 338. It is well established that the use of the mails after the scheme has been fully consummated and completed in all of its parts cannot supply the essential ingredient for an offense under Section 215, 18 U.S.C.A. § 338. Mitchell v. United States, 10 Cir., 118 F.2d 653; Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill" }, { "docid": "23161147", "title": "", "text": "Moreover, if the fees were not paid by clients it reasonably follows that Stewart, who worked the fraud to get the assessments reduced, could use his place and position to get them raised again. In one instance where a client thought a reduction from approximately $140,000.00 to $40,000.00 was too much and declined to accept Steiner’s services in the matter, the assessment was caused by the partner Stewart to be raised to in excess of $80,-00.00, an amount acceptable to the taxpayer. Lane Cotton Mills which dispensed with these most successful reduction serv ices after using them for several years found that upon dismissal of Steiner its assessments soared even higher than before. Appellant contends that the scheme to defraud the State and its taxpayers was consummated at the instant the illegal tax assessment reductions were entered on the books of the Tax Commission; and that the mails were used after the execution of the scheme and in connection with matters wholly outside the scheme to defraud. Cf. McNear v. United States, 10 Cir., 60 F.2d 861; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; Spillers v. United States, 5 Cir., 47 F.2d 893; Stapp v. United States, 5 Cir., 120 F.2d 898. The case at bar is not controlled by thosev decisions, for here the scheme to defraud had not come to an end when the mails were used. Unless money came in, the scheme would not and, could not operate, for Stewart, the key-man with access to the tax rolls, Steiner, the soliciting lawyer, and Stein, the go-between, were all in the scheme for what they could get out of it. The collection of fees for “services rendered” was an integral part of the continuous and operating scheme to defraud, and the mails were used to accomplish their collection. When one of the schemers used the mails for collection of fees in furtherance of the fraudulent scheme, all defendants being partners in crimp, were responsible for the mailing. Tincher v. United States, 4 Cir., 11 F.2d 18; Hart v. United States, 5 Cir., 112 F.2d 128. Under Section" }, { "docid": "6823382", "title": "", "text": "trust but an active fraud, and such conduct is condemned by the mail fraud statute if the mail is used in furtherance of the execution of said scheme. (United States v. Groves, C.C.A., N.Y., 1941, 122 F.2d 87, cert. den. 314 U.S. 670, 62 S.Ct. 135, 86 L.Ed. 536; United States v. Buckner, C.C.A., N.Y., 108 F.2d 921, cert. den. 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016.) The gist of the offense of the crime charged in this indictment is the use of the mails, and a scheme to defraud need not be set forth with such precision as if it were the gist of the offense. (Leche v. United States, 118 F.2d 246, cert. den. 314 U.S. 617, 62 S.Ct. 73, 86 L.Ed. 496, reh. den. 314 U.S. 712, 62 S.Ct. 295, 86 L.Ed. 567; United States v. Lowe, 7 Cir., 115 F.2d 596, cert. den. 311 U.S. 717, 61 S.Ct. 441, 85 L.Ed. 466.) While it is essential that criminal intent to defraud be proved at the time of the trial in order to sustain conviction, acts which may be innocent by themselves may, in combination, constitute a fraud. A scheme to obtain money unfairly by obtaining and then betraying the confidence of another is a scheme to defraud although no lies are told and it is within the prohibition of the mail fraud statute if the mails are used in connection therewith. (Shushan v. United States, supra; United States v. McKay, D.C., Mich.1942, 45 F.Supp. 1001, 1007.) Defendants next contend, in attacking the legal sufficiency of the indictment, that said indictment fails to allege that the defendants knew the falsity of the alleged misrepresentations. It is sufficient to state that the allegation of scienter is not required. The scheme described in the instant indictment does not involve primarily a scheme to obtain money by false and fraudulent pretenses, representations and promises. It is a scheme and artifice to defraud, and the scheme may exist even though no misrepresentations, in fact, were made. (Kreuter v. United States, 5 Cir., 218 F.2d 532, cert. den. 349 U.S." }, { "docid": "16954033", "title": "", "text": "in causing both the Government and defendant to make extensive and expensive trial preparations, to impanel a jury, to spend several weeks in hearing many witnesses, some no doubt from distant points, and then being compelled to direct a verdict for the defendant because the facts proven, and already conceded by the defendant to be the facts,, do not constitute the offense charged. See United States v. Adams Express Co., supra, 119 F. 240, 241. o Accordingly, as a practical matter it seems advisable for the Court to rule on the demurrer to the indictment without considering the bill of particulars, and in case that ruling should be erroneous, considering the language of the indictment instead of the actual facts, to also indicate its present views based on the facts as set out in the bill of particulars. It is well settled that under Section 215 of the Criminal Code it is not sufficient to merely allege and show that the defendant devised a scheme or artifice to defraud. The statute specifically provides that the United States mail must be used “for the purpose of executing such scheme or artifice or attempting so to do.” It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the ground that the indictment shows on its face that the use of the mails relied upon by the Government in each count was not for the purpose of executing the scheme or artifice charged, but on the contrary occurred after the completion of the alleged scheme and at a time when the fraud, if any existed, had been fully perpetrated. Defendant relies upon the well settled rule that the mailing of a letter or check, even though connected with or relating to a scheme to defraud, if not for the purpose of executing the scheme, will not support an indictment under the statute. If the scheme charged was completed before the mail was used the offense denounced by" }, { "docid": "9487670", "title": "", "text": "a nullity and it is the province and duty of this court to grant the relief sought. The indictment charges that the petitioner and another devised a scheme to defraud, and “for the purpose and with the intent of executing the said scheme and artifice” they caused the mails of the United States to be used, and it affirmatively alleges the use of the mails and the specific manner in which the mails were used. It may well be that the proof adduced at the trial of the case was insufficient to show that the use of the mails was a part of the scheme to defraud, or that they did in fact use or cause the mails to be used in furtherance or for the purpose of executing the fraudulent scheme, but these were questions necessarily within the jurisdiction of the trial court, and his error in the determination of this question is exclusively within the jurisdiction of the appropriate appellate courts and does not exist here. The petitioner relies upon Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669; see, also, Mitchell v. United States, 10 Cir., 118 F.2d 653. In each of these cases, the defect in the indictment or the proof in support thereof was challenged by appeal and not by habeas corpus, and are not controlling in the determination of the question presented here. We do not think that the allegations of the indictment affirmatively show that the fraudulent scheme was fully consummated when the money was paid over by the person to be defrauded, or that the offense described in the indictment was impossible of execution. The indictment does describe an offense under Section 338, Title 18 U.S.C.A., and is not vulnerable to attack here. Creech v. Hudspeth, 10 Cir., 112 F.2d 603. Cf. Dyhre v. Hudspeth, supra. The order denying the writ of habeas corpus" }, { "docid": "16954035", "title": "", "text": "Section 215 of the Criminal Code does not exist. Stapp et al. v. United States, 5 Cir., 120 F.2d 898; Spillers v. United States, 5 Cir., 47 F.2d 893; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; McNear v. United States, 10 Cir., 60 F.2d 861; McLendon v. United States, 6 Cir., 2 F.2d 660; United States v. Dale, D.C., 230 F. 750; United States v. Leche, D.C., 34 F.Supp. 982, 986; United States v. Siebricht, 2 Cir., 59 F.2d 976; Mitchell v. United States, 10 Cir., 118 F.2d 653. The scheme charged in the indictment was one to defraud Edsel B. Ford. Count 1 relies upon the mailing on November 26, 1938, of a cashier’s check for $5,000 dated November 18, 1938, payable to Frank McKay and endorsed by him. This is obviously the proceeds of the alleged fraudulent scheme; it is equally obvious that it is not the check of the victim. It follows that any money obtained from the victim by means of any fraudulent scheme had been obtained and was a completed transaction when the cashier’s check was issued by the Detroit Bank on November 18, 1938, and when the mailing of the cashier’s check in question took place eight days later on November 26, 1938. At that time the victim had parted with his money without power to retract. In Count 2 the Government relies upon the mailing of a check issued by BassLuckoff, Inc., for $3,068 dated November 29, 1938, payable to the order of cash and endorsed by Frank McKay. This check is also obviously not the check of the victim, although representing the proceeds of the alleged scheme. When it was issued on November 29, 1938, the fraud upon Ford, if any existed, had already been completed. Bass-Luckoff, Inc., had already obtained the money from the victim before issuing its own check. The mailing of the BassLuckoff check on December 1, 1938, was not for the purpose of defrauding the victim. Even if the foregoing analysis of the situation, as derived from the allegations of the indictment and the exhibits made a" }, { "docid": "5702345", "title": "", "text": "the commission would rehear the conversion proposal. Counts 6 through 8 were based upon notice of the rehearing sent to tenants of the apartment complex. Counts 9 and 10 were based upon notices sent by the planning commission and the city council, respectively, advising the owner of the complex that the conversion project had been approved. Mitchell argues that each of these mailings was routine, intrinsically innocent, and required by law and that they therefore were not made in furtherance of the scheme to defraud. To violate section 1341, mailings need not be an essential part of the scheme, but they must be made or caused to be made for the purpose of executing the scheme. United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974); Bohonus, 628 F.2d at 1173. This requirement is satisfied if the completion of the scheme or the prevention of its detection is in some way dependent upon the mailings. See United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir.1977). Each of the mailings identified in the indictment played an integral part in the completion of Mitchell’s scheme. The mailing in Count 5, informing the complex owner of the granting of the rehearing, was an important step in eventually securing the commission’s approval. The mailings to the tenants in Counts 6 through 8 were required by the planning commission as a condition to holding a rehearing on the conversion application. The mailings to the complex owner in Counts 9 and 10 were required to consummate the scheme. As in United States v. Miller, 676 F.2d 359, 362 (9th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982), “[o]nly then was the transaction complete.” Because city ordinances required that the notices to which Counts 5, 9, and 10 refer be mailed, Mitchell knew the mails would be used in the course of securing the city’s approval of the project. See United States v. Brutzman, 731 F.2d 1449, 1454 (9th Cir. 1984). Each notice was thus a necessary step in achieving the goal of approval of" }, { "docid": "22368862", "title": "", "text": "effectuate the original design. The important thing is that the scheme, or the inten tion to devise it, shall remain the same. The variety of means which may be employed in the execution thereof is limited only by the ingenuity of the schemer. The statute is violated if, having devised or intending to devise a scheme to defraud, the mails are used for the purpose of executing such scheme or attempting to do so. It is not necessary that when the artifice was devised the schemers shall have worked out all the details of its execution. The law does not define fraud; it needs no definition ; it is as old as falsehood and as versable as human ingenuity. As was said by this court in McLendon v. United States, 5 Cir., 14 F.2d 12, on page 14: “The language of section 215 of the Criminal Code does not indicate that the lawmakers intended to enable one who uses the mails in furtherance of a scheme to defraud to obtain immunity for so doing by making the commission of a plurality of crimes a part or feature of his scheme.” In Sasser v. United States, 5 Cir., 29 F. 2d 76, the indictment was in twenty counts. The scheme was set out in detail in the first count, and adopted by reference in all the other counts, the only material difference between the counts being that a different letter was set out in each, and alleged to have been mailed to some one of the banks intended to be defrauded. This court held that every part or element of the scheme as alleged in the indictment need not be proven, but that it was sufficient to prove enough to constitute an offense. In Gourdain v. United States, 3 Cir., 154 F. 453, it was held that various means used in committing the offense may be joined without duplicity. The theory upon which the indictment in the court below was drawn was that there was but one scheme, which was to obtain money by fraud in connection with the building contract." }, { "docid": "6823383", "title": "", "text": "in order to sustain conviction, acts which may be innocent by themselves may, in combination, constitute a fraud. A scheme to obtain money unfairly by obtaining and then betraying the confidence of another is a scheme to defraud although no lies are told and it is within the prohibition of the mail fraud statute if the mails are used in connection therewith. (Shushan v. United States, supra; United States v. McKay, D.C., Mich.1942, 45 F.Supp. 1001, 1007.) Defendants next contend, in attacking the legal sufficiency of the indictment, that said indictment fails to allege that the defendants knew the falsity of the alleged misrepresentations. It is sufficient to state that the allegation of scienter is not required. The scheme described in the instant indictment does not involve primarily a scheme to obtain money by false and fraudulent pretenses, representations and promises. It is a scheme and artifice to defraud, and the scheme may exist even though no misrepresentations, in fact, were made. (Kreuter v. United States, 5 Cir., 218 F.2d 532, cert. den. 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262.) Even though the indictment contains charges of misrepresentations, since the indictment sufficiently charges the defendants with intentionally devising a scheme, the failure to allege scienter on behalf of the defendants with regard to the alleged misrepresentations does not vitiate the indictment. With regard to the contention that the facts alleged in the indictment failed to show that the alleged mailings were, in fact, in furtherance of the execution of the scheme described in the indictment, it is sufficient to state that whether the mailings charged are innocent and not in furtherance of the scheme is a question which must be determined at the trial and is not a point to be considered on a motion to dismiss or motion to quash the indictment. (United States v. Feinberg, 50 F.Supp. 976, 977 (D.C.N.Y.1943), affirmed, 140 F.2d 592, 154 A.L.R. 272, (2 Cir.,) cert. den. 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1943); Meunch v. U. S., 96 F.2d 332, 336 (8 Cir. 1938).) This indictment, which alleges" }, { "docid": "3316578", "title": "", "text": "the whole of the indictment. As will be developed more fully later in this order, the court finds that the indictment meets the constitutional requirements in that it provides the defendants with sufficient information to prepare a defense and protect them against double jeopardy. United States v. Ray et al., 514 F.2d 418, 422 (7th Cir. 1975). IV MOTION TO DISMISS COUNTS II THROUGH XIII ON THE GROUND THAT MAILINGS ARE NOT IN FURTHERANCE OF THE SCHEME TO DEFRAUD Defendants argue that a necessary element of § 1341 is that the mailing be in execution of the scheme to defraud, and that the alleged mailings here were subsequent to and not incidental to the scheme and so, not in execution of the scheme. At this stage of the proceedings the court is merely passing upon the sufficiency of the indictment. The question as to the relationship between the bid-rigging scheme and the mailings is an evidentiary matter. The issue here is whether the court, upon reading the indictment would find it inconceivable that the government could produce evidence at trial to show that the mailings were in furtherance of the scheme. Thus, the only questions here are first whether the indictment charges a fraudulent scheme within the scope of the mail fraud statute, and, second, whether the indictment alleges mailings in furtherance of that alleged scheme. The two necessary elements for a violation of the mail fraud statute are: (1) formation of a scheme with intent to defraud, and (2) the use of the mails in furtherance of that scheme. United States v. Keane, 522 F.2d 534, 544 (7th Cir. 1975). It is not necessary that the scheme contemplate the use of the mails as an essential element. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The instant indictment has alleged that the defendants devised a scheme to defraud governmental entities soliciting bids on public projects within the State of Illinois, and that the mails were used in furtherance of that scheme. In order for a mailing to be a sufficient basis for a" }, { "docid": "23161148", "title": "", "text": "F.2d 861; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; Spillers v. United States, 5 Cir., 47 F.2d 893; Stapp v. United States, 5 Cir., 120 F.2d 898. The case at bar is not controlled by thosev decisions, for here the scheme to defraud had not come to an end when the mails were used. Unless money came in, the scheme would not and, could not operate, for Stewart, the key-man with access to the tax rolls, Steiner, the soliciting lawyer, and Stein, the go-between, were all in the scheme for what they could get out of it. The collection of fees for “services rendered” was an integral part of the continuous and operating scheme to defraud, and the mails were used to accomplish their collection. When one of the schemers used the mails for collection of fees in furtherance of the fraudulent scheme, all defendants being partners in crimp, were responsible for the mailing. Tincher v. United States, 4 Cir., 11 F.2d 18; Hart v. United States, 5 Cir., 112 F.2d 128. Under Section 215 of the Criminal Code, the mail fraud statute, it is sufficient to charge and prove that there was a scheme to defraud; that the mails were used or caused to be used in furtherance of the scheme; and that the scheme was one which “reasonably contemplated the use of the mails”. A careful review of the evidence in this rather lengthy record discloses that the government proved the essential elements of the offenses charged,'and that there was no fatal variance between the charges and the proof. Spivey v. United States, 5 Cir., 109 F.2d 181; Corbett v. United States, 8 Cir., 89 F.2d 124; Guardalibini v. United States, 5 Cir., 128 F.2d 984; United States v. Lowe, 7 Cir., 115 F.2d 596; Hart v. United States, supra. Steiner attacks the sufficiency of the evidence to show the mailings alleged in the first two counts of the indictment, and further alleges that for purposes of venue there was no proof that the letter in the second count was mailed in New Orleans. The statement forming" }, { "docid": "8626951", "title": "", "text": "sufficiency as a basis for the mail fraud counts because it tended to prove the continuing scheme to defraud charged in the indictment. It was a form letter sent to investors giving a glowing report on the progress being made in the very promotion which is the subject matter of the indictment. In addition, it contains a solicitation of additional investments. This contention overlooks the fact that the offenses charged are the result of a single continuing scheme to defraud. The scheme becomes a crime when the mails are used in furtherance thereof. Harper v. United States, 8 Cir., 143 F.2d 795. Since it is the use of the mails in furtherance of the fraudulent scheme that is prohibited rather than fraud upon any recipient of material sent through the mails, the testimony of a victim is admissible to prove the scheme to defraud even if there has been no use of the mails in defrauding that party. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548; McNear v. United States, 10 Cir., 60 F.2d 861; Blue v. United States, 6 Cir., 138 F.2d 351. Frank next contends that the court erred in admitting the testimony of Witt, who testified that a dry hole was drilled in 1939, and the testimony of Nassaman, who testified...that a dry hole was drilled in 1946, although Frank had predicted in both instances, after testing with his magnetic logger, that oil would be found. One of the misrepresentations charged in the indictment related to the purported infallibility of the magnetic logger. This evidence was clearly admissible because of its bearing upon the question of whether Frank knowingly made false statements with respect to the reliability of his magnetic logger as an oil finding device. It is next argued that the court committed error in permitting the witness White, who qualified as a geologist, to express an opinion as to the oil production which might be obtained from the 160-acre tract. The short answer to this contention is that Rule 28 of the Federal Rules of Criminal Procedure, 18 U.S. C.A.," } ]

[ { "docid": "15268998", "title": "", "text": "can be easily applied to the parties’ arguments and the record on appeal, we review the district court’s decision under Ross and conclude that the court erred in granting defendants’ motion to dismiss. Accordingly, we reverse and remand for further proceedings. II. DISCUSSION We review a grant of a motion to dismiss de novo. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011). Specifically, the issue of “[w]hether a plaintiff has exhausted administrative remedies under the [PLRA] is also a question reviewed de novo.” Amador v. Andrews, 655 F.3d 89, 94-95 (2d Cir.2011). For purposes of this review, we accept all of the factual allegations in the complaint as true, see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), and, because Williams appeared pro se before the district court, we are “constrained to conduct our examination with ‘special solicitude,’ interpreting the complaint to raise the ‘strongest claims that it suggests,’ ” Hill, 657 F.3d at 122 (alterations omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (per curiam)). The PLRA instructs that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir.2013). Accordingly, “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216, 127 S.Ct. 910. However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement. See id. at 215, 127 S.Ct. 910. In Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), we set forth a three-part inquiry to guide our analysis" } ]

[ { "docid": "18252072", "title": "", "text": "Defendants, and declared that the foreclosure sale “was properly carried out under District of Columbia law.” Id. at 4. II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When evaluating a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 2064, 176 L.Ed.2d 418 (2010). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “Pleadings must be construed so as to do justice,” Fed.R.Civ.P. 8(e), and documents filed by pro se parties must be “liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted). Moreover, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). The district court “need not accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669," }, { "docid": "26525", "title": "", "text": "MEMORANDUM OPINION SUE L. ROBINSON, District Judge. I. INTRODUCTION Plaintiff Donald D. Parkell (“plaintiff”), is a pretrial detainee at the Howard R. Young Correctional Institution (“HRY-CI”), Wilmington, Delaware, who proceeds pro se and has been granted in forma pauperis status. He filed this complaint pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights. (D.I. 3) Plaintiff filed an amended complaint on January 9, 2013 adding as parties defendant Delaware Department of Correction (“DOC”) Commissioner Carl Danberg (“Danberg”) and hearing officer Lt. Pedrick (“Pedrick”). (D.I. 8) In addition, plaintiff recently filed a motion for injunctive relief to obtain dental treatment. (D.I. 10) II. STANDARD OF REVIEW This court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir.2008); Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. at 94, 127 S.Ct. 2197 (citations omitted). An action is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional” factual scenario. Neitzke, 490 at 327-28, 109 S.Ct. 1827; Wilson v. Rackmill, 878 F.2d" }, { "docid": "5633766", "title": "", "text": "Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) (internal quotation marks omitted). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,” plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual mafter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). Determining the plausibility of a claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft, 556 U.S. at 679, 129 S.Ct. 1937. The pleadings of pro se parties are “ ‘to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citation omitted). Still, “[a] pro se complaint, like any" }, { "docid": "11331464", "title": "", "text": "F.3d at 502. Although not always, our judicial system does recognize the complexity of our prescriptive procedural rules and we oftentimes relax those rigid requirements when a litigant appears in federal court unrepresented. E.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)(“A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (citation and internal quotation marks omitted)); Castro v. United States, 540 U.S. 375, 381-82, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)(explaining that federal courts may recharacterize a pro se litigant’s filing to avoid “unnecessary dismissal” and the “inappropriately stringent application” of labeling requirements, or to better correspond to the motion’s substance and legal basis). We have also taken significant steps to ensure that prisoners’ filings are not subject to the unrestrained whims of prison officials. See Fed.R.Civ.P. 4(c); see also United States v. Craig, 368 F.3d 738, 740 (7th Cir.2004) (“Today the mailbox rule depends on Rule 4(c) ..., [which] applies to ‘an inmate confined in an institution’ .... A court ought not pencil ‘unrepresented’ or any extra word into the text of Rule 4(c).”). The mailbox rule further counterbalances the heavy weight that our procedural rules have stacked against pro se prison litigants. In a just judicial system, a pro se prisoner’s chance of success should not be inextricably tied to his or her understanding and familiarity with the nuance of procedure; it should depend primarily on the substantive merits of the claim being asserted. The mailbox rule facilitates merits adjudication by, under certain circumstances, removing one — but not all — of the complex procedural hurdles standing in the pro se prisoner’s way. Because “[n]o matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped ‘filed’ on time,” the mailbox rule renders this matter inconsequential in the interest of justice. See Houston, 487 U.S. at 271, 108 S.Ct. 2379. With the" }, { "docid": "2818317", "title": "", "text": "the plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Mere conclusory statements” of misconduct are not enough to make out a cause of action against a defendant. Id. Rather, a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. When deciding a Rule 12(b)(6) motion to dismiss, “[t]he court must view the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.” Busby, 932 F.Supp.2d at 134 (citation omitted). Although the court must accept as true the facts in the complaint, it need not accept inferences a plaintiff draws if the facts set out in the complaint do not support such inferences. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nor is the court “bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Significantly, the pleadings of pro se parties are to be “liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks and citations omitted). “This benefit is not, however, a license to ignore the Federal Rules of Civil Procedure.” Sturdza v. U.A.E., 658 F.Supp.2d 135, 137 (D.D.C.2009) (citation omitted). Rather, “even though a pro se complaint must be construed liberally, the complaint must still ‘present a claim on which the Court can grant relief.’ ” Budik v. Dartmouth-Hitchcock Med. Ctr., 937 F.Supp.2d 5, 11 (D.D.C.2013) (quoting Chandler v. Roche, 215 F.Supp.2d 166, 168 (D.D.C.2002)); see also Moore v. Motz, 437 F.Supp.2d 88, 90 (D.D.C.2006) (noting that a court need not accept “[e]ven a pro se plaintiffs inferences” if the facts set out in the complaint do not support those inferences) (citation omitted); Crisafi" }, { "docid": "23322216", "title": "", "text": "we vacate the October 24 Order insofar as it denied plaintiffs application to prosecute her claims under a pseudonym. II. Construction of Pro Se Pleadings On occasions too numerous to count, we have reminded district courts that “when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001)). This obligation entails, at the very least, a permissive application of the rules governing the form of pleadings. As the Supreme Court has recently observed, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, — U.S.-, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted). This is particularly so when the pro se plaintiff alleges that her civil rights have been violated. See McEachin, 357 F.3d at 200. Accordingly, the “dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.” Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir.2008). The District Court, in its evaluation of plaintiffs pro se complaint, failed to apply these directives. As described above, the District Court instructed plaintiff to file an amended complaint that (1) alleged the personal involvement of two defendants; (2) identified two “John Doe” defendants; (3) stated a claim against the municipal defendant; (4) pleaded conspiracy with the requisite level of detail; and (5) complied with the relevant formatting rules. See October 24 Order at 4-8. Failure to do so, the District Court warned, would result in the sua sponte dismissal of the action. See id. at 11. We believe it was inappropriate for the District Court to threaten dismissal of all of plaintiffs claims against all of the defendants based on pleading deficiencies relating only to some of the defendants and the complaint’s deviation from the relevant formatting rules. In light of the nature of plaintiffs claims — including physical and sexual assault — the District Court should have afforded plaintiff wider" }, { "docid": "20073855", "title": "", "text": "against them based upon their involvement as litigants in Civil Action 06-305E. Id. See also Document # 56, Opposition Brief, page 14. C. Standards of Review 1. Pro Se Pleadings Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 647 (7th Cir.1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir.1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.1990) (same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate. 2. Motion to dismiss pursuant to 12(b)(6) A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167" }, { "docid": "13514670", "title": "", "text": "Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “A document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks omitted). Even still, a pro se complaint “must plead factual matter that permits the court to infer more than the mere possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C.Cir.2011) (internal quotation marks omitted). II Under the Privacy Act, an agency may “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President” and is- required to “collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs.” 5 U.S.C. § 552a(e)(l), (2). Under some circumstances, however, an agency may “exempt certain of [its] systems of records from many of the obligations [the Privacy Act] imposes.” Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093, 1096 (D.C.Cir.2009) (citing 5 U.S.C. § 552a(j)). Invoking this provision, the Department of Treasury exempted TECS from certain Privacy Act provisions. See 31 C.F.R. § 1.36(c)(l)(iv), (2) (exempting TECS from 5 U.S.C. §§ 552a(d)(1)-(4), 552a(e)(1)-(3), (5), 552a(g)). The district court found TECS is exempt “from all of the Privacy Act requirements that Mr. Ab-delfattah would enforce in this suit, as well as the jurisdictional provision that would allow him to bring it.” Abdelfattah, 893 F.Supp.2d at 81. The district court therefore dismissed the Privacy Act claims against the Department, and Abdelfattah does not challenge this determination on appeal." }, { "docid": "4866696", "title": "", "text": "Fargo, and MERS moved to dismiss all of Plaintiffs claims pursuant to Rule 12(b)(6). (ECF No. 6). Plaintiff obtained counsel and filed an opposition in which she only opposed one of the arguments raised within Defendants’ motion. Defendants timely replied. II. Standard of Review The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). A plaintiffs complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1987, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). Additionally, complaints filed by pro se plaintiffs are “to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted). In evaluating the complaint, regardless of whether it was filed pro se, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir.1989). Nor must it agree with legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556" }, { "docid": "20035188", "title": "", "text": "[“Def.’s Mem.”] at 2-3.) ANALYSIS 1. STANDARD OF REVIEW “[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Marsoun v. United States, 591 F.Supp.2d 41, 43 (D.D.C.2008) (quoting Seheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); see also Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009) (‘“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.’ ”) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). “In determining whether a complaint fails to state a claim [under Rule 12(b)(6) ], [courts] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [courts] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). The pleadings of pro se parties “[are] to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks and citations omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted by the court.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”). II. FEDERAL CLAIMS Although plaintiff makes multiple claims against WMATA, her only reference to a federal statute is her claim that the complaint is “based off of 42 U.S.C. § 1983.” (Compl. at 1.) As noted, based on allegations in the complaint, the Court has pre sumed that plaintiff also intends" }, { "docid": "13514669", "title": "", "text": "to state a Right to Financial Privacy Act claim. Id. at 83. This appeal followed. After receiving supplemental briefing, a special panel of this court denied the Appellees’ Motion for Summary Affirmance and appointed amicus to represent Abdelfattah. Order, Abdelfattah v. Dep’t of Homeland Security, No. 12-5322 (D.C.Cir. Feb. 8, 2014). The district court exercised jurisdiction over this case pursuant to 28 U.S.C. § 1331, and we have jurisdiction to review its final order under 28 U.S.C. § 1291. We review the district court’s “dismissal of claims for want of subject matter jurisdiction under Rule 12(b)(1) or for failure to state a claim under Rule 12(b)(6)” de novo. El Paso Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C.Cir.2014) (citing Kim v. United States, 632 F.3d 713, 715 (D.C.Cir.2011)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “A document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks omitted). Even still, a pro se complaint “must plead factual matter that permits the court to infer more than the mere possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C.Cir.2011) (internal quotation marks omitted). II Under the Privacy Act, an agency may “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or" }, { "docid": "13006889", "title": "", "text": "inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The plaintiff must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Id. at 1950. When a complaint’s well-pleaded facts do not enable a court, “draw[ing] on its judicial experience and common sense,” “to infer more than the mere possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. While “[a]ll pleadings shall be so construed as to do substantial justice,” Fed. R.Civ.P. 8(f), a document filed by a party proceeding pro se must be “liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted). For example, where a pro se party has filed multiple submissions, the district court must generally consider those filings together and as a whole. Richardson, 193 F.3d at 548; see also Sieverding v. U.S. Dep’t of Justice, 693 F.Supp.2d 93, 101 n. 2 (D.D.C.2010) (considering factual allegations in pro se plaintiffs prior pleadings even though they had technically been superceded by filing of amended complaint). Moreover, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). Even with the liberality afforded pro se complaints, the district court “need not accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C.Cir.2008) (internal quotation marks omitted). III. DISCUSSION The Court’s discussion proceeds in three parts. First, beginning with the issues that have been the focus of the parties in briefing the present motion, the Court shall explain why Fennell has stated a claim for race- and sex-based discrimination. Second, although afforded little attention in AARP’s moving papers, the Court shall explain why Fennell has also" }, { "docid": "3100616", "title": "", "text": "District Court erroneously determined that Fantone did not allege that Burger played any part in his administrative custody commitment to the RHU. The Court did not afford Fantone’s allegations in his amended complaint the liberal reading that Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), requires. The Supreme Court explained in Haines that a pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers;” Id. at 520-21, 92 S.Ct. at 596; but we nonetheless review the pleading to ensure that it has “sufficient factual matter; accepted as true; to state a claim to relief that is plausible on this face.” Ashcroft v. Iqbal; 556 U.S. 662; 678; 129 S.Ct. 1937; 1949; 173 L.Ed.2d 868 (2009). See also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (“a document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”) (internal citation and quotation marks omitted). The District Court found that “Plaintiffs Complaint clearly states that Plaintiff was placed on [administrative custody] ‘per Lt. Latini,’ not Defendant Burger.” App. 21. In doing so, the Court did not take into account the assertions in Fantone’s amended complaint alleging that while Latini ultimately ordered that Fantone remain in the RHU on administrative custody, Burger listened to the misconduct hearing, heard Mackey commit Fantone to time served, and then communicated with Latini. Fantone alleges that this communication led to Latini issuing his order that Fantone be held in administrative custody. Fantone also alleges that Burger openly mocked him and demonstrated his dominance over him as he was being taken to administrative custody after his second disciplinary conviction, conduct that supports a reasonable inference that Burger was involved in his confinement in the RHU. It is not unreasonable to draw an inference that there was a causal connection between Fantone’s attempts to exercise his constitutional rights, Burger’s actions, and Fantone’s subsequent placement in administrative custody" }, { "docid": "26526", "title": "", "text": "brought with respect to prison conditions). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir.2008); Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. at 94, 127 S.Ct. 2197 (citations omitted). An action is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional” factual scenario. Neitzke, 490 at 327-28, 109 S.Ct. 1827; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir.1995) (holding frivolous a suit alleging that prison officials took an inmate’s pen and refused to give it back). The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B)). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to amend her complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.2002). A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868" }, { "docid": "18252073", "title": "", "text": "face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “Pleadings must be construed so as to do justice,” Fed.R.Civ.P. 8(e), and documents filed by pro se parties must be “liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted). Moreover, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). The district court “need not accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C.Cir.2008) (internal quotation marks omitted). Additionally, in deciding a Rule 12(b)(6) motion, a court may consider “ ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,’ ” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (quoting Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002)), or “ ‘documents upon which the plaintiffs complaint necessarily relies’ even if the document is produced not by [the parties].” Id. (quoting Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009)). III. DISCUSSION Defendants move to dismiss Plaintiffs Complaint on the grounds each claim is barred by collateral estoppel or res judicata. Specifically, Defendants allege Counts Two and Six of the Complaint are barred by collateral estoppel, and Counts One, Three, Four, Five, and Eight are barred by res judicata. Plaintiff argues that based on the claims raised in his prior federal action, collateral estoppel is inapplicable, but does not dispute any of Defendants’ claims regarding Plaintiffs D.C. Superior Court case. Pl.’s Opp’n at 8-9." }, { "docid": "4866697", "title": "", "text": "L.Ed.2d 868 (2009) (internal quotation marks omitted). At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). Additionally, complaints filed by pro se plaintiffs are “to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted). In evaluating the complaint, regardless of whether it was filed pro se, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir.1989). Nor must it agree with legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not ‘show[n] ... that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Moreover, allegations of fraud — which Plaintiff raises in both her RICO and state law claims — are subject to a heightened pleading standard under Rule 9(b). Harrison, 176 F.3d at 783-84. Rule 9(b) states that “in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud" }, { "docid": "22252839", "title": "", "text": "Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.2002); see also Duckworth, 532 F.3d at 679 (“[Although deliberate means more than negligen[ee], it is something less than purposeful.”). Nor does a prisoner need to show that he was literally ignored. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.2005). That the prisoner received some treatment does not foreclose his deliberate indifference claim if the treatment received was “so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate his condition.” Id. (quotation marks omitted). A. Section 1915(e)(2) Screening of Complaint Our review of a dismissal under § 1915(e)(2)(B) for failure to state a claim is de novo. DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir.2000). We apply the same standard used for evaluating dismissals under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “taking all well-pleaded allegations of the complaint as true and viewing them in the light most favorable to the plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.2010). To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief,” which is sufficient to provide the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and quoting Fed. R.Civ.P. 8(a)(2)). We must however construe pro se complaints liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citation omitted); Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir.2008). Recent cases instruct us to examine whether the allegations in the complaint state a “plausible” claim for relief. Iqbal, 129 S.Ct. at 1949. To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.... A claim" }, { "docid": "16685876", "title": "", "text": "[their] own hands,” and (2) ordering that “all defendants be fired from the New York State Department of Correctional Services and never be allowed to hold any civil servant job within New York State.” (Compl. at 10.) II. Discussion On a motion to dismiss, a court reviewing a complaint will consider all material factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir.1999). “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” ATSI Commc’ns, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 93 (2d Cir.2007) (internal quotation omitted). Ultimately, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[A] simple declaration that defendant’s conduct violated the ultimate legal standard at issue ... does not suffice.” Gregory v. Daly, 243 F.3d 687, 692 (2d Cir.2001). When reviewing a pro se complaint for failure to state a claim, a court is obligated to employ less rigorous standards than if the complaint was drafted by counsel. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal quotations and citations omitted). But nonetheless, a pro se plaintiff must still “identify] the particular events giving rise to her claim” so as to give defendants “fair notice of her claim and the grounds upon which it rests.” Boykin v. KeyCorp., 521 F.3d 202, 214-15 (2d Cir.2008) (citation omitted). In reviewing a complaint, a court is not limited to the four corners of the complaint; a court may also consider “documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial" }, { "docid": "10306431", "title": "", "text": "material issue appearing genuinely to be in dispute.” Falls Riverway Realty, Inc. v. City of Niagara Falls, N.Y., 754 F.2d 49, 54 (2d Cir. 1985) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). If a defendant succeeds on a motion for judgment on the pleadings, he is “entitled to a judgment as a matter of law.” Juster Assocs. v. City of Rutland, Vt, 901 F.2d 266, 269 (2d Cir. 1990). However, a court should not dismiss a complaint pursuant to a Rule 12(c) motion “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, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (discussing Rule 12(b)(6)); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977) (applying Conley standard to Rule 12(c)). The court is “not bound to accept as true legal conclusions couched as factual allegations.” LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 476-77 (2d Cir.2009). Accordingly, “[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’ ” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Furthermore, when a plaintiff acts pro se, the “complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quotation omitted); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Courts liberally construe pro se pleadings “to raise the strongest argument that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the court may not “invent factual allegations that [a pro se litigant] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). IV. DISCUSSION The" }, { "docid": "4823853", "title": "", "text": "the rule to preclude relation back for amended complaints that add new defendants, where the newly added defendants were not named originally because the plaintiff did not know their identities. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir.1999); Barrow, 66 F.3d at 470. We have held that, although “Rule 15(c) explicitly allows the relation back of an amendment due to a ‘mistake’ concerning the identity, of the parties ... [,] the failure to identify individual, defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake.” Barrow, 66 F.3d at 470. The' spraying incident took place on February 15, 2009, and Hogan filed his complaint on May 5, 2009. “Federal law determines when a section 1983 cause of action accrues, and we have ruled that accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of. his action.” Pearl, 296 F.3d at 80 (internal quotation marks and citations omitted). Defendants argue that, because the spraying incident took place in February 2009, Hogan’s claims against the John Doe defendants are now time-barred. Therefore, under Rule 15(c)(1)(C), Hogan may substitute named defendants for the John Doe defendants only if an amended complaint relates back to the date of the original filing. Hogan, however, cannot meet the third requirement of Rule 15(c)(1)(C). This Court’s interpretation of Rule 15(c)(1)(C) makes clear that the lack of knowledge of a John Doe defendant’s name does not constitute a “mistake of identity.” Barrow, 66 F.3d at 470. Accordingly, under Rule 15(c)(1)(C), Hogan is time-barred from amending his complaint. 2. Rule 15(c)(1)(A) Rule 15(e)(1)(A) permits an amended pleading to relaté back when “the law that provides the applicable statute of limitations allows relation back.” This Circuit has not previously addressed whether Rule 15(c)(1)(A) applies to § 1983 claims against John Doe defendants. See Wilson v. City of New York, No. 03-CV-2495(RLC), 2006 WL 2528468, at *2 n. 6 (S.D.N.Y. Aug. 31, 2006). The Rules Advisory Committee added Rule 15(c)(1)(A) in 1991 to “make ... clear that [Rule 15] does not apply to preclude" } ]

[ { "docid": "23211307", "title": "", "text": "purported breach of the plea agreement. We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993). We affirm. A. When a defendant enters a plea of guilty and later seeks to withdraw it, the defendant bears the burden of demonstrating that withdrawal should be granted. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991). Calvin Dyess and Orange Dyess are making a post-sentencing challenge to their guilty pleas. In these situations, a district court only abuses its discretion in denying withdrawal if the underlying plea proceedings “were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure.” United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir.2000). We review each of the defendants’ due process challenges in turn. 1. Calvin Dyess argues that his guilty plea violates due process because it was not knowing or voluntary. He claims that his attorney’s decision to allow him to enter into a plea agreement that included exposure to a life sentence amounts to ineffective assistance of counsel. Calvin Dyess also faults his attorney for not knowing about Hart and Miss Rader’s intimate relation and the degree to which it would affect the sentencing process. We agree with the district court that Calvin Dyess had the benefit of competent counsel at the time of the proceedings and that his plea was therefore knowing and voluntary. To justify a withdrawal of a guilty plea on the basis of ineffective assistance of counsel, a defendant must show 1) that his counsel’s actions fell below an objectively reasonable standard, and 2) that but for the attorney’s errors, it is reasonably probable that the defendant would have chosen to face trial rather than plead guilty. Ubakanma, 215 F.3d at 425; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989). Calvin Dyess fails to meet this burden. Calvin Dyess cannot successfully claim that he was ineffectively represented solely because his attorney allowed him to" } ]

[ { "docid": "22375430", "title": "", "text": "fair and just reason.” Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991). “It is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.” United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (citation omitted). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, and we will not reverse unless the defendant can show that the court acted unjustly or unfairly. Id. Defendant’s first contention — ie., that original counsel’s ineffective assistance is a fair and just reason for withdrawal of his guilty plea — fails in light of our conclusion, supra part I, that Defendant did not receive ineffective assistance of counsel. We also reject Defendant’s claim of new evidence as a basis for withdrawing his plea. Defendant has never asserted that he is innocent of the count to which he pleaded guilty, and Defendant admits that the alleged new witness could not offer any testimony concerning this count. See United States v. Ramos, 810 F.2d 308, 312 (1st Cir.1987) (motion to withdraw can be denied if defendant fails to raise cognizable defense to charges). Furthermore, although the government concedes that there was no undue delay in the filing of Defendant’s motion and that prejudice to the government is not great, Defendant received assistance of counsel and the district court ensured that Defendant’s plea was voluntary and knowing by meticulously complying with the requirements of Fed.R.Crim.P. 11. Moreover, Defendant’s essential complaint is with the length of his sentence, and dissatisfaction with the length of a sentence is an insufficient reason to withdraw" }, { "docid": "4742516", "title": "", "text": "this record we are convinced the court accepted Byrum’s guilty plea. B. Byrum Failed to Establish a “Fair and Just Reason” to Withdraw His Plea Having found the court accepted the guilty plea, the remaining question is whether Byrum presented a “fair and just reason” to withdraw his plea as required by Rule 11. Byrum contends that even if we determine the district court accepted his guilty plea, the court abused its discretion in refusing to permit him to withdraw his plea. In particular, he claims that although he pleaded guilty and allocuted under oath to the facts of his crimes, the district court erred in failing to recognize his later protestations of innocence. He further alleges that his guilty plea resulted from misrepresentations by his court-appointed counsel. Finally, he contends he should have been permitted to obtain new counsel and that the district court should have held a full hearing on the issue. We review the district court’s denial of motion to withdraw a guilty plea for an abuse of discretion. Sandoval, 390 F.3d at 1297. When a defendant moves to withdraw a guilty plea — after its acceptance by the district court but prior to sentencing — the court must assess whether there is a “fair and just reason for withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The court should consider the following factors: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005). (8) Here, the district court determined that Byrum’s motion, filed after it had performed a thorough Rule 11 colloquy, after Byrum had admitted the facts underlying his offense, and after both parties had negotiated and entered into a plea agreement, would be “pointless.” R., Vol. Ill at 4. Essentially, the" }, { "docid": "22474199", "title": "", "text": "appellant cites United States v. Lambey, 974 F.2d 1389 (4th Cir.1992), cert. denied, — U.S. -, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994), which, in reviewing the Advisory Notes to the 1983 amendment to Rule 32, identifies the fairness of the Rule 11 proceeding as most important. Id. at 1394. We also stated in' Lambey that a “fair and just reason” is either essentially a challenge to the validity of the Rule 11 proceeding or a challenge to the “fulfillment of a promise or condition emanating from the proceeding.” Id. at 1393-94. Lambey did not address the test laid out in Moore two years earlier. Thus appellant argues that Cray and Lambey, rather than Moore, should control. Alternatively, appellant claims that under the test currently used by this Circuit as set forth in Moore, 931 F.2d at 248, appellant should have been allowed to withdraw his plea of guilty. The six-factor analysis in Moore requires the trial court to weigh the following: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary; (2) whether defendant has credibly asserted his legal innocence; (3) whether there has been a delay between the entering of. the plea and the filing of the motion; (4) whether the defendant has had close assistance of competent counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether it will inconvenience the court and waste judicial resources. Id. At oral argument, the government also -urged the adoption of the Cray analysis, rather than the six-factor test from Moore. We therefore address this issue. It is this Court’s view that the Cray analysis appears to be nearly identical to our test laid out in Moore. Cray places a strong reliance on the validity of the Rule 11 proceedings, as does Moore. Cray also appears to combine the “delay” and “prejudice to the government” factors of Moore into a single factor, “whether the government would be prejudiced by the delay in going to trial.” Cray, 47 F.3d at 1207. The third factor in Cray, a credible assertion of legal innocence," }, { "docid": "22630044", "title": "", "text": "Puckett, 61 F.3d 1092, 1099 (4th Cir.1995) (a “fair and just” reason is one that “essentially challenges” the fairness of a proceeding under Fed. R.Crim.P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. See Moore, 931 F.2d at 248. On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma’s guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that no one had coerced Mm into pleading guilty and that he was in fact guilty of the wire fraud offense. Ubakanma was advised of the essential terms of the plea agreement, and he asserted under oath that he understood them. The court reviewed the maximum permissible sentence on the wire fraud conviction, and Ubakanma acknowledged that he understood. The court also advised Ubakanma of the constitutional rights being waived by his guilty plea, and he again indicated his understanding. In these circumstances, Ubakanma’s conclu-sory post-plea assertions that his plea was not knowing and voluntary, made in his unsworn letter to the court, fail to overcome the barrier of the sworn statements made at his Rule 11 hearing. We therefore agree with the district court in weighing this factor in favor of the Government. As to the second factor, Ubakanma con-clusorily asserts his legal innocence. In light of his contrary statements diming the Rule 11 proceeding, we also agree with the district court that this factor weighs strongly in favor of the Government. As to the" }, { "docid": "22924916", "title": "", "text": "Mr. Hamilton’s ineffective-assistance claim is “fully developed in the record,” it falls within the narrow exception to our general rule that such claims will be dismissed when brought on direct appeal. See Galloway, 56 F.3d at 1242 (“Some rare claims which are fully developed in the record may be brought either on direct appeal or in collateral proceedings.”); see also United States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir.1996) (considering ineffective-assistance allegation on direct appeal because a factual record had been fully developed in the district court). We will therefore review the District Court’s denial of Mr. Hamilton’s motion. 2. Whether Mr. Hamilton Established a “Fair and Just Reason” for Withdrawal Our review of a district court’s denial of a motion to withdraw a guilty plea is for abuse of discretion. United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999). Although a motion to withdraw a plea prior to sentencing should be “freely allowed,” we will not reverse a district court’s decision unless the defen dant can show that the court acted “unjustly or unfairly.” Id. (quotations omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if “the defendant can show a fair and just reason for requesting the withdrawal.” The defendant bears the burden of establishing a “fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton’s argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first. a. Assertion of Innocence Mr. Hamilton contends that he asserted his innocence on both counts in his" }, { "docid": "23708088", "title": "", "text": "Chavers, 515 F.3d 722, 724 (7th Cir.2008). “The decision to permit the defendant to withdraw a plea is discretionary, and our review is limited to the question of whether the district court abused its discretion.” United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir.1992) (en banc). “A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law.” United States v. Delfino, 510 F.3d 468, 470 (4th Cir.2007), cert. denied, — U.S. -, 129 S.Ct. 41, 172 L.Ed.2d 20 (2008). In light of the fact that “a properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn,” we have articulated a list of nonexclusive factors for a district court to consider in deciding a plea withdrawal motion. Bowman, 348 F.3d at 414. Those factors are: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted legal innocence, (3) whether there has been a delay between entry of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will prejudice the government, and (6) whether withdrawal will inconvenience the court and waste judicial resources. Id. The consideration of these factors is not “a rigidly mechanistic test, for the conspicuous fuzziness of [the] operative terms — ‘fair and just’ — precludes such an endeavor.” United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir.1995). However, a district court typically should balance these factors, along with any other pertinent information, to reach its decision. See United States v. Faris, 388 F.3d 452, 461 (4th Cir.2004). II Evidence in the record indicates that Thompson-Riviere was born in October 1965 in the Coco Solo Hospital in the Canal Zone. His official birth certificate, which is marked as being certified by the Panama Canal Commission, lists his parents as Calvin Thompson and Elvira" }, { "docid": "464579", "title": "", "text": "would net a harsher sentence. The district court found Aguas’s claim of innocence not credible because it contradicted his earlier testimony and recent letter. The district judge also noted his personal knowledge of defense counsel’s integrity. On appeal Aguas contends that the court abused its discretion in denying the motion. Upon a showing of a “fair and just reason,” a district court may permit a defendant to withdraw a guilty plea at any time before sentencing. Fed.R.Crim.P. 32(d); United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). Rule 32 is applied liberally, but there is no absolute right to withdrawal. Id. In ruling on the motion, the district court is to consider: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The defendant has the burden of proving that withdrawal is justified, and the district court’s ruling will not be reversed absent an abuse of discretion. Id. The Carr factors support the court’s ruling. Aguas first moved for withdrawal at sentencing, seven weeks after pleading guilty. He explained that during the interim he had been “thinking and meditating how my attorney influenced me.” Rule 32, however, was not intended “to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice.” Carr, 740 F.2d at 345. Moreover, Aguas was assisted by respected counsel, see id., and he concedes that the transcript indicates that his plea was knowing and voluntary. Aguas argues that withdrawal would not have prejudiced the Government," }, { "docid": "22630043", "title": "", "text": "case for further proceedings. I. Each of the defendants challenges the validity of his guilty plea to wire fraud. We review their challenges in turn. A. Shortly after entering his guilty plea in August 1997, but before sentencing, Ubak-anma wrote the court requesting that his plea be withdrawn and that new counsel be appointed. He asserted that he is innocent and that he had pleaded guilty due to his attorney’s intimidation and poor advice. The district court denied this motion without a hearing. Ubakanma asserts on appeal that the court erred in denying his requests to withdraw his guilty plea and for appointment of new counsel. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Brown, 617 F.2d 54 (4th Cir.1980). There is no absolute right to withdraw a guilty plea, see United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), thus the defendant has the burden of showing a fair and just reason for withdrawal. See id.; see also United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.1995) (a “fair and just” reason is one that “essentially challenges” the fairness of a proceeding under Fed. R.Crim.P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. See Moore, 931 F.2d at 248. On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma’s guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that" }, { "docid": "22348747", "title": "", "text": "evidence that his plea was not knowing or not voluntary; 2) whether the defendant has credibly asserted his legal innocence; 3) whether there has been a delay between the entering of the plea and the filing of the motion; 4) whether the defendant has had close assistance of competent counsel; 5) whether withdrawal will cause prejudice to the government; 6) and whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.) cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). In Lambey, however, we stated that a “fair and just” reason for withdrawing a guilty plea is one that “essentially challenges ... the fairness of the Rule 11 proceeding.” Lambey, 974 F.2d at 1394. We emphasized that an “appropriately conducted Rule 11 proceeding ... raise[s] a strong presumption that the plea is final and binding.” Id. In this case, the district court engaged in a thorough Rule 11 colloquy with Pamela Puckett. The court informed her of the mandatory minimum penalty. The court also informed the defendant that it could not determine the guideline sentence until after the presentence report had been completed. During the colloquy, Pamela acknowledged that the sentence could be more or less severe than she expected. Additionally, the plea agreement indicated that Puckett understood that sentencing was within the sole discretion of the court, and that the guidelines applied, possibly creating a mandatory period of incarceration. The parties also stipulated to a low drug weight in order to minimize the severity of her sentence. Thus, prior to accepting Pamela’s guilty plea, the district court fulfilled its requirements under Rule 11 and also ascertained that the defendant read and understood the plea agreement. Pamela Puckett’s motion to withdraw her plea rests solely upon her allegation that the district court erred by not providing her with sentencing guideline information prior to her guilty plea. In United States v. Good, 25 F.3d 218, 219 (4th Cir.1994), we held that Rule 11(c)(1) does not require a district court to advise the defendant about the applicable guideline range" }, { "docid": "22375429", "title": "", "text": "Therefore, without deciding whether the failure to seek an evidentia-ry hearing was objectively unreasonable, we conclude that because present counsel sought an evidentiary hearing, Defendant was not prejudiced by original counsel’s failure to do so. II. Defendant claims that the district court abused its discretion by denying Defendant’s Fed.R.Crim.P. 32(d) motion to withdraw his guilty plea. Prior to sentencing, Defendant sought to withdraw his plea based upon the alleged ineffective assistance of original counsel, outlined supra part I, and based upon the discovery of new evidence. The alleged new evidence is the discovery of the whereabouts of a witness whom Defendant claims could “establish [Defendant’s] innocence in several counts against him and lower the level of his involvement in others, which would directly affect the sentence of [Defendant] under the [ ] Sentencing Guidelines.” Fed.R.Crim.P. 32(d) provides in pertinent part: “[i]f a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991). “It is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.” United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (citation omitted). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, and we will not reverse unless the defendant can show that the court acted unjustly or unfairly. Id. Defendant’s first contention — ie., that original counsel’s ineffective assistance is a fair and just reason" }, { "docid": "22066806", "title": "", "text": "denial is “arbitrary or unreasonable.” United States v. Weaver, 275 F.3d 1320, 1328 n. 8 (11th Cir.2001). A district court’s refusal to hold an evidentiary hearing is also reviewed for abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986). It does not amount to abuse of discretion when a court has conducted extensive Rule 11 inquiries prior to accepting the guilty plea. Id. The Federal Rules of Criminal Procedure require a district court, before it accepts a plea of guilty, to inform the defendant of his rights relevant to his guilty plea and determine that he understands them. Fed.R.Crim.P. 11(b)(1). After the district court has accepted a plea and before sentencing, a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In determining whether the defendant has met his burden to show a “fair and just reason,” a district court “may consider the totality of the circumstances surrounding the plea.” United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir.1988). In the course of this inquiry, we consider “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at 472 (citations omitted). “The good faith, credibility and weight of a defendant’s assertions in support of a motion [to withdraw a guilty plea] are issues for the trial court to decide.” Id. Additionally, “[t]he longer the delay between the entry of the plea and the motion to withdraw it, the more substantial the reasons must be as to why the defendant seeks withdrawal.” Id. at 473. Here, the district court found that: (1) Brehm was represented by counsel; (2) Brehm’s guilty plea was voluntary, he was competent to understand the indictment, and he acknowledged waiving his rights to a jury trial; (3) sufficient judicial resources had been expended in Brehm’s case in that he had been granted three continuances of his sentencing;" }, { "docid": "22348746", "title": "", "text": "she would serve no more time than she is already required to serve on her undischarged sentences”). We, therefore, find that although the district court did not specifically state that it was applying either §§ 5G1.3(c) or 7B1.3, its reasoning indicates that the appropriate factors were considered under the relevant guidelines. Accordingly, we find that the district court did not abuse its discretion by ordering that Puckett’s sentences for the in stant offenses run consecutively to the parole revocation sentence. V. We now turn to Pamela Puckett’s motion to withdraw her guilty plea under Rule 32(d) of the Federal Rules of Criminal Procedure. We review a district court’s refusal to allow a defendant to withdraw a guilty plea for abuse of discretion. United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir.1992) (en banc). The court is to consider the following factors in determining whether the defendant has met her burden under Rule 32(d) of showing a fair and just reason for the withdrawal of the guilty plea: 1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary; 2) whether the defendant has credibly asserted his legal innocence; 3) whether there has been a delay between the entering of the plea and the filing of the motion; 4) whether the defendant has had close assistance of competent counsel; 5) whether withdrawal will cause prejudice to the government; 6) and whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.) cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). In Lambey, however, we stated that a “fair and just” reason for withdrawing a guilty plea is one that “essentially challenges ... the fairness of the Rule 11 proceeding.” Lambey, 974 F.2d at 1394. We emphasized that an “appropriately conducted Rule 11 proceeding ... raise[s] a strong presumption that the plea is final and binding.” Id. In this case, the district court engaged in a thorough Rule 11 colloquy with Pamela Puckett. The court informed her of the mandatory minimum penalty. The" }, { "docid": "23708087", "title": "", "text": "lodge in all cases where the vagaries of a defendant were due only to a wish held by many if not all criminal defendants who do not relish the prospects of standing trial but also, in the end, decide to take an unreasonably long-shot gamble on beating by standing trial a fair, reasonable and just guilty plea. United States v. DeFreitas, 865 F.2d 80, 83 (4th Cir.1989); see also Brady, 397 U.S. at 757, 90 S.Ct. 1463 (“A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.”). “[T]he defendant bears the burden of demonstrating that withdrawal should be granted,” United States v. Dyess, 478 F.3d 224, 237 (4th Cir.), cert. denied, — U.S. -, 128 S.Ct. 707, 169 L.Ed.2d 556 (2007); in this regard, the defendant bears a “heavy burden of persuasion in showing that ... a fair and just reason exists,” United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). “The decision to permit the defendant to withdraw a plea is discretionary, and our review is limited to the question of whether the district court abused its discretion.” United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir.1992) (en banc). “A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law.” United States v. Delfino, 510 F.3d 468, 470 (4th Cir.2007), cert. denied, — U.S. -, 129 S.Ct. 41, 172 L.Ed.2d 20 (2008). In light of the fact that “a properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn,” we have articulated a list of nonexclusive factors for a district court to consider in deciding a plea withdrawal motion. Bowman, 348 F.3d at 414. Those factors are: (1) whether the defendant has offered credible evidence that his plea was not" }, { "docid": "22040433", "title": "", "text": "§ 1291. III. Discussion Jones raises two challenges to the District Court proceedings. First, Jones asserts that the District Court abused its discretion in denying his motion to withdraw his guilty plea. Second, he argues that the District Court erred in failing to hold a competency hearing prior to sentencing him. We conclude that Jones has not stated an appropriate basis for seeking to withdraw his guilty plea and that the District Court did not abuse its discretion in denying that motion. However, on the basis of the evidence later presented to the Court regarding his competency, there was reasonable cause to believe that Jones was not competent to proceed with sentencing. Accordingly, we will remand for a determination by the District Court as to whether a meaningful hearing on competency can now take place. A. The District Court’s Denial of Jones’s Motion to Withdraw His Guilty Plea In March of 2001, Jones sought to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 32(e), arguing that his plea, entered December 4, 2000, was involuntary due to ineffective assistance of counsel. The District Court conducted a hearing on this issue on May 22, 2001. We review a district court’s ruling denying a defendant’s motion to withdraw his guilty plea before sentencing pursuant to an abuse of discretion standard. United States v. Hams, 44 F.3d 1206,1210 (3d Cir.1995). Once a court accepts a defendant’s guilty plea, the defendant is not entitled to withdraw that plea simply at his whim. United States v. Brown, 250 F.3d 811, 815 (3d Cir.2001); United States v. Martinez, 785 F.2d 111 (3d Cir.1986). Rather, pursuant to Federal Rule of Criminal Procedure 32(e), a defendant must have a “fair and just reason” for withdrawing a plea of guilty. Fed. R. Cr. P. 32(e); Brown, 250 F.3d at 815. A district court must consider three factors when evaluating a motion to withdraw a guilty plea: (1) whether the defendant asserts his innocence; (2) the strength of the defendant’s reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal. Brown, 250" }, { "docid": "22633384", "title": "", "text": "who had sought to withdraw a guilty plea under Rule 32(d). Despite this difference, we held that when the proffered “fair and just” reason for withdrawal is erroneous advice of counsel, a defendant must establish that his counsel’s performance rose to the level of a Sixth Amendment violation. This, I submit, was error. When a federal defendant seeks to withdraw his plea, not on the grounds that the plea was a constitutionally infirm, involuntary waiver of the right to trial, but on the grounds that he has a “fair and just reason” to do so, the standard of Hill and Strickland is not implicated. Rather, the Federal Rules of Criminal Procedure can and do establish a more flexible and less rigorous standard for the withdrawal of guilty pleas before sentencing. We recently set forth the correct analysis for identifying a “fair and just reason” under Rule 32(d) in United States v. Moore, supra. In Moore we stated that: Courts typically consider a variety of factors in determining whether a defendant has met his burden under Rule 32(d). The factors include (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. Moore, 931 F.2d at 248; see also C. Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982, 1992 Supp.). Applying this analysis, I would hold that the district court abused its discretion in refusing to permit Lambey to withdraw his plea. I am of opinion that all but one of the factors identified in Moore strongly favor Lambey’s argument that he established a fair and just reason for withdrawal of his plea. As to the first factor I consider, one that in this case is closely related to the fourth factor in" }, { "docid": "2175558", "title": "", "text": "not considering his allegation that counsel was ineffective before denying the motion. These arguments lack support in the record; therefore, we affirm the district court’s denial of Catchings’s motion to withdraw his guilty plea. We review for abuse of discretion the district court’s denial of a motion to withdraw a guilty plea. United States v. Wynn, 663 F.3d 847, 849 (6th Cir.2011). “A district court abuses its discretion where it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir.2008) (quotation marks and citation omitted). Under Rule 11(d), a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B). In making the determination of whether the defendant has shown a “fair and just reason,” we consider the totality of the circumstances, including the factors set forth in United States v. Bashara: (1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant’s nature and background; (6) the degree to which the defendant has had prior expe rience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted. 27 F.3d 1174, 1181 (6th Cir.1994). These factors “are a general, non-exclusive list and no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir.1996) (per curiam). Our examination of these factors in this case buttresses our conclusion that the district court did not abuse its discretion in denying Catchings’s motion to withdraw his guilty plea because Catchings did not offer a fair and just reason that finds support in the record. 1. Length of delay. Catchings waited over two months after pleading guilty to file his motion to" }, { "docid": "22633385", "title": "", "text": "Rule 32(d). The factors include (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. Moore, 931 F.2d at 248; see also C. Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982, 1992 Supp.). Applying this analysis, I would hold that the district court abused its discretion in refusing to permit Lambey to withdraw his plea. I am of opinion that all but one of the factors identified in Moore strongly favor Lambey’s argument that he established a fair and just reason for withdrawal of his plea. As to the first factor I consider, one that in this case is closely related to the fourth factor in Moore, I am of opinion that Lambey’s grossly erroneous conception of the imprisonment range that he was facing effectively rendered his plea unknowing and involuntary. Cf. Hoffman v. Leeke, 903 F.2d 280, 289 (4th Cir.1990) (“A defendant cannot knowingly and intelligently waive what he does not know.”). Second, the time lapse between the entry of his guilty plea and his motion to withdraw was negligible under the circumstances. Despite some later confusion and indecision on Lambey’s part, see note 2, supra, his initial motion to withdraw came only 22 days after his guilty plea. More importantly, Lambey made his motion immediately upon learning from his probation officer of his counsel’s mistake; clearly, then, the motion cannot be said to have been made for strategic or dilatory purposes. Third, and most crucial in this case, the advice Lambey received from his counsel as to the consequences of waiving his right to trial was so erroneous and inadequate that he could not have made an informed decision. In my view this factor alone, on the facts of" }, { "docid": "22474198", "title": "", "text": "Wilson’s motion to withdraw the guilty plea.... J.A. 145. The appellant was subsequently sentenced to forty-six months imprisonment. II. A refusal by the district court to allow a appellant to withdraw a guilty plea under Rule 32(e), Fed.R.Crim.P., is reviewed on appeal for abuse of discretion. Moore, 931 F.2d at 248. Appellant makes essentially a two-pronged attack against the district court’s denial of his motion to withdraw the guilty plea. Appellant’s first asks this court to adopt the analysis of the District of Columbia Court of Appeals in United States v. Cray, 47 F.3d 1203 (D.C.Cir.1995), where that court held that the validity of the Rule 11 proceeding was the most important inquiry in determining whether the defen dant had a “fair and just reason” to withdraw a guilty plea. Id. at 1207. Other factors identified by the D.C. Circuit include whether defendant has made a credible claim of legal innocence, and whether the government has been prejudiced by the delay in proceeding to trial. Id. To support the adoption of Cray in this Circuit, appellant cites United States v. Lambey, 974 F.2d 1389 (4th Cir.1992), cert. denied, — U.S. -, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994), which, in reviewing the Advisory Notes to the 1983 amendment to Rule 32, identifies the fairness of the Rule 11 proceeding as most important. Id. at 1394. We also stated in' Lambey that a “fair and just reason” is either essentially a challenge to the validity of the Rule 11 proceeding or a challenge to the “fulfillment of a promise or condition emanating from the proceeding.” Id. at 1393-94. Lambey did not address the test laid out in Moore two years earlier. Thus appellant argues that Cray and Lambey, rather than Moore, should control. Alternatively, appellant claims that under the test currently used by this Circuit as set forth in Moore, 931 F.2d at 248, appellant should have been allowed to withdraw his plea of guilty. The six-factor analysis in Moore requires the trial court to weigh the following: (1) whether the defendant has offered credible evidence that his plea was not" }, { "docid": "23000555", "title": "", "text": "-, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). Accordingly, we review here to determine whether the district court abused its discretion in determining that Craig had not shown a “fair and just reason” for being allowed to withdraw his plea — that being the Rule’s standard. Id. Among the factors relevant to this determination are (1) whether the defendant had close assistance of competent counsel; (2) whether he credibly asserts his innocence; (3) the extent of delay between guilty plea and motion to withdraw it; and (4) whether withdrawal at the time attempted would prejudice the government or waste judicial resources. Id. Of these factors, (2) and (3) clearly militate against withdrawal: Craig has never asserted, credibly or not, his innocence, and there was an interval of eight weeks between the guilty plea and Craig’s first motion to withdraw it. Because the matter was not addressed, the record reveals nothing about the possible prejudice to the government, but, as always, some at least must be assumed. Treating that factor as a neutral one on the record we have, that leaves the question of the effectiveness of Craig’s counsel in advising him on his legal rights as they bore upon the wisdom of pleading guilty as he did. It is on this factor that Craig based his claim of fair and just reasons for withdrawal in the district court and on which he bases his contention on this appeal that in failing to find his counsel’s ineffectiveness a “fair and just reason” for plea withdrawal, the district court abused its discretion. As indicated, he has relied on three claims of ineffectiveness of counsel: failure to advise him of his constitutional right to an indictment with respect to the Asheville robbery; erroneous advice about the sentencing possibilities incident to the two plea bargains offered him; and finally, outright “coercion” by his counsel to plead guilty. Counsel’s ineffectiveness in any of these respects could constitute a “fair and just reason” for allowing plea withdrawal, but in this circuit only if the ineffectiveness was of constitutional magnitude. Lambey, 974 F.2d at 1394; DeFreitas, 865" }, { "docid": "23000554", "title": "", "text": "be pursued only through a § 2255 habeas petition. See, e.g., United States v. Grandison, 783 F.2d 1152, 1156— 57 (4th Cir.), cert. denied, 479 U.S. 845, 107 S.Ct. 160, 93 L.Ed.2d 99 (1986). We disagree. Where, as here, a defendant urges the ineffectiveness of counsel as the basis of a challenge to the denial of a Rule 32(d) motion, the claim is only advanced for its relevance to the determination whether there was a “fair and just reason” for allowing plea withdrawal, and not as an independent constitutional basis for reversal. As such, it is properly before the court on direct appeal. See Lambey, 974 F.2d at 1389; United States v. DeFreitas, 865 F.2d 80 (4th Cir.1989). We therefore reject both grounds upon which the government seeks dismissal of the appeal, and turn to the merits. Ill The decision whether to grant a Rule 32(d) motion for the withdrawal of a guilty plea is committed to the district court’s discretion. United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). Accordingly, we review here to determine whether the district court abused its discretion in determining that Craig had not shown a “fair and just reason” for being allowed to withdraw his plea — that being the Rule’s standard. Id. Among the factors relevant to this determination are (1) whether the defendant had close assistance of competent counsel; (2) whether he credibly asserts his innocence; (3) the extent of delay between guilty plea and motion to withdraw it; and (4) whether withdrawal at the time attempted would prejudice the government or waste judicial resources. Id. Of these factors, (2) and (3) clearly militate against withdrawal: Craig has never asserted, credibly or not, his innocence, and there was an interval of eight weeks between the guilty plea and Craig’s first motion to withdraw it. Because the matter was not addressed, the record reveals nothing about the possible prejudice to the government, but, as always, some at least must be assumed. Treating that factor as a neutral one on the" } ]

[ { "docid": "796463", "title": "", "text": "a condition of his release. On this he argues that whatever might have been the case in the event of forfeiture of credits prior to August 9, 1959, once that date passed with credits still effective the sentence expired. He bases this principally on the provision of § 4161 which requires that “Each prisoner * * * shall be entitled to a deduction from the term of his sentence * * * ” for good time earned. The statute makes clear that a prisoner freed under the conditional release provisions “shall * * * be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” 18 U.S.C.A. § 4164. Under the parole provisions “A warrant for the retaking of any * * * prisoner-who has violated his parole, may be issued * * * within the maximum term or terms for which he was sentenced.” 18 U.S.C.A. § 4205. The parole may thereafter be terminated and “the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C.A. § 4207. The whole scheme reflects a purpose not to alter, or reduce, or modify the sentence imposed by the judicial judgment. The credits when earned and retained affect the time of confinement. The cases as well make it unmistakably clear that “good time” is a conditional right which may be forfeited upon violation of the conditions of the prisoner’s release. Wooten v. Wilkinson, Warden, 5 Cir., 1959, 265 F.2d 211; Miller v. Hardwick, Warden, 5 Cir., 1956, 229 F.2d 164. The rules which apply in parole cases apply with equal force in conditional release cases. Good time may be forfeited entirely for any violation occurring prior to the end of the maximum sentence (less, of course, the statutory 180-day period of § 4164). Schiffman v. Wilkinson, Warden, 9 Cir., 1954, 216 F. 2d 589; Mandel v. Heritage, Warden, 9 Cir., 1959, 267 F.2d 852; Singleton v. Looney, Warden, 10 Cir., 1955, 218" } ]

[ { "docid": "1427670", "title": "", "text": "Second, petitioner attempts to derive support for his position from the fact that 18 U.S.C. § 4205 was repealed by the Parole Commission and Reorganization Act of 1976, Pub.L.No.94-233, 90 Stat. 219. Section 4205 provided: A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve. This provision had been cited by courts which upheld parole revocation decisions made after the expiration of a releasee’s maximum term less 180 days so long as the violator warrant had issued before such date. E.g., Moore v. Smith, 412 F.2d 720 (7th Cir. 1969). Contending that the repeal of § 4205 evidences a congressional intent to divest the Commission of authority to make parole revocation decisions once the operative date is reached, petitioner argues that 28 C.F.R. § 2.44(d) (1981), which essentially codifies the prior law on this issue, lacks a statutory basis and is therefore without effect. The Parole Commission, arguing that the term jurisdiction in § 4210(b) is ambiguous and that the repeal of § 4205 was intended only to change prior law regarding the issue of crediting a parolee, whose parole has been revoked, with time spent under supervision, submits that its interpretation of the relevant statutory language as expressed in its regulation is the more reasonable construction. IV The central issue in this case, as the parties perceive it, is the meaning of the word jurisdiction in § 4210(b). “The power to hear and determine a cause is jurisdiction ...” declared the Supreme Court in the context of judicial authority. U. S. v. Fernando de La Maza Arrendondo, 31 U.S. (6 Pet.) 691, 709, 8 L.Ed. 547 (1832). Petitioner points to this definition" }, { "docid": "800866", "title": "", "text": "PER CURIAM: Appellant, who is confined in a federal penitentiary, challenges the right of the government to deny him credit for the accumulated good conduct time he earned prior to release on parole and his violation thereof. See 18 U.S.C. § 4161. The appellant contends that 18 U.S.C. § 4165 is the sole statutory authority whereunder his good time credits can be forfeited. That section provides for forfeiture in event of misconduct by a convict while he is imprisoned. The statute which governs the appellant’s case is 18 U.S.C. § 4207, providing in pertinent part as follows: If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced. See also 18 U.S.C. § 4205. The appellant does not contend that he was denied administrative due process nor that his parole was revoked without good cause, although he mentions that state burglary charges which resulted from his actions while on parole have been dismissed. The appellant failed to allege grounds which would entitle him to relief. See Clark v. Blackwell, 5th Cir. 1967, 374 F.2d 952; Buchanan v. Blackwell, 5th Cir. 1967, 372 F.2d 451; Smith v. Blackwell, 5th Cir. 1966, 367 F.2d 639; Smoake v. Willingham, 10th Cir. 1966, 359 F.2d 386; Wooten v. Wilkinson, 5th Cir. 1959, 265 F.2d 211. Therefore, the district court did not err in denying the habeas corpus petition. Affirmed. . Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See, Murphy v. Houma Well Service, 5th Cir. 1969, 409 F.2d 804." }, { "docid": "204549", "title": "", "text": "in the past this circuit has permitted a prisoner to attack the action, or inaction, of the Board of Parole through a petition directed at the immediate custodian, where that custodian is acting as the Board’s agent. Burton v. Ciccone, 484 F.2d 1322 (8th Cir. 1973). See also Barnes v. United States, 445 F.2d 260 (8th Cir. 1971); Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967). We therefore conclude that there are no jurisdictional defects in the judgment below. Moreover, the designation of a class by the District Court relieves this court of the burden of following individual transfers of the named petitioners to other institutions during the .appeal process, events which might otherwise raise jurisdictional problems or questions of mootness. II. RIGHT TO A REASONABLY PROMPT HEARING The starting point of our analysis must be the statutes governing the procedures in question and the now well settled rule that due process of law is required in parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Cooper v. Lockhart, supra, 489 F.2d at 312. Under the controlling statutes, if a warrant for the retaking of a prisoner who has violated his parole is executed, 18 U.S.C. § 4206, the unexpired term of his imprisonment “shall begin to run from the date he is returned to the custody of the Attorney General under said warrant * * 18 U.S.C. § 4205. A prisoner thus “retaken” “shall be given an opportunity to appear before the Board [of Parole], a member thereof, or an examiner designated by the Board.” 18 U.S.C. § 4207. Two circuits have held that, since the operative act is the execution of the warrant, no statutory duty to provide a parole revocation hearing arises until after that event has taken place. Cook v. United States Attorney General, 488 F.2d 667 (5th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974); Small v. Britton, 500 F.2d 299 (10th Cir. 1974). Those circuits likewise found that the constitutional requirements of Morrissey v. Brewer, supra, were satisfied by the statutory" }, { "docid": "11811338", "title": "", "text": "388, 390 n.1, 408, 100 S.Ct. 1202, 1205 n. 1, 1214-15, 63 L.Ed.2d 479 (1980); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). In each of those cases, the Court found it unnecessary to address any part of the ex post facto issue. . Parole Commission and Reorganization Act, ch. 311, 90 Stat. 219 (1976) (codified as amended at 18 U.S.C.A. §§ 4201-4218 (West 1985)) (repealing and replacing Act of June 25, 1948, P.L. 80-722, ch. 311, §§ 4201-4207, 62 Stat. 683, 854-55, and Act of Aug. 25, 1958, P.L. 85-752, §§ 3-5, 72 Stat. 845-47 (both codified as amended at 18 U.S.C. §§ 4201-4209 (1970)) (repealed 1976)). The Sentencing Reform Act of 1984 abolishes the parole system and replaces the current sentencing process with a system of sentencing guidelines, effective November 1, 1986. P.L. 98-473, tit. II, ch. II, 98 Stat. 1987; id. at § 218(a)(5), 98 Stat. 2027 (repealing chapter 311, currently codified as amended at 18 U.S. C.A. §§ 4201-4218 (West 1985)). The Parole Commission and current law provisions relating to parole are to remain in effect for five years after the effective date of the Sentencing Reform Act as to any individual convicted of an offense before the effective date of the Act in order to deal with sentences imposed under current sentencing practices. Id. § 235(b)(1), 98 Stat. 2032. . The statute in effect at the time Hayward committed his offense provided in pertinent part: If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole. 18 U.S.C. § 4203(a) (1970) (emphasis added) (repealed 1976). . Here the Commission observes that, since Yamamoto's offense involved smuggling more than sixty times" }, { "docid": "400536", "title": "", "text": "has not been held, a mandamus action to compel compliance would be appropriate, coupled with appropriate sanctions against the non complying officials. In accordance with the foregoing, Lambert’s release request is denied. Lambert’s next argument concerns forfeiture of good time credits and credit for time spent on conditional release by those who have had their mandatory release revoked. Under 18 U.S.C. § 4164 (1976), a prisoner given mandatory release would “be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced” less 180 days. Under the pre-1976 law, it is clear that a parole violator could lose both good time credits and credit for time spent on conditional release. 18 U.S.C. §§ 4205, 4207 (1970); Coronado v. United States, 540 F.2d 216, 218 (5th Cir. 1976); Blanchard v. United States, 433 F.2d 13 (5th Cir. 1970). Under the Parole Commission and Reorganization Act, sections 4205 and 4207 were substantially changed and include no similar forfeiture provisions. Nonetheless, absent some legislative indication to the contrary, we will not upset the well-settled rule that once the appellant’s release was revoked because of his violation of its conditions the U.S.P.C. had the authority to forfeit the appellant’s good-time credit as well as credit for time spent on conditional release. Lazard v. United States, 583 F.2d 176, 177 (5th Cir. 1978); Coronado v. United States, 540 F.2d 216, 218 (5th Cir. 1976); Henning v. United States Bureau of Prisons, 472 F.2d 1221, 1222 (5th Cir. 1973); Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966). Lambert’s third claim questions the propriety of holding a joint dispositional review — parole revocation hearing. He argues that he and his counsel were unfairly surprised by a parole revocation hearing, or revocation-disposition hearing when they were expecting only a dispositional review. This argument is meritless for several reasons. First, the detainer was executed on January 13, 1978. At that time, the only appropriate administrative proceeding would be a parole revocation hearing. 18 U.S.C. § 4214(c) (1976). A dispositional review would not have been appropriate since he was" }, { "docid": "1323485", "title": "", "text": "imprisonment term of more than one year would be eligible for parole after serving one-third of his sentence. See Parole Commission & Reorganization Act, Pub.L. No. 94-233, § 2, 90 Stat. 219, 222-23 (1976). Section 4205(h), however, provided that “[njothing in this chapter shall be construed to provide that any prisoner shall be eligible for release on parole if such prisoner is ineligible for such release under any other provision of law.” Id. Robles was convicted of distribution of cocaine under 21 U.S.C. § 841(a). The punishment for that crime is established in 21 U.S.C. § 841(b). On October 27,1986, prior to the time that Robles committed this offense, section 841(b) was largely rewritten by the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1002, 100 Stat. 3207, 3207-2 to -4. One of the changes was the addition to section 841(b)(1)(B) of the proviso that “[n]o person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.” Id., 100 Stat. at 3207-4. Similar provision was made in section 841(b)(1)(A) and (C). Id., 100 Stat. at 3207-3, -4. In other words, the amended section 841(b) created an explicit exception to the general 4205(a) rule allowing parole. The issue on appeal, therefore, is whether the “no parole” provision added to 18 U.S.C. § 841(b) by the 1986 amendments became effective before or after February 1987, when the instant offense was committed. Ordinarily, a statute becomes effective as soon as' it is signed into law in the absence of some provision to the contrary. E.g., United States v. Stillwell, 854 F.2d 1045, 1047 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 508, 102 L.Ed.2d 544 (1988); United States v. York, 830 F.2d 885, 892 (8th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). If this general rule applies, then the “no parole” provision became effective on October 27, 1986, when President Reagan signed the Anti-Drug Abuse Act of 1986 into law. In that case, Robles’ claim would fail. Robles, however, contends that the Anti-Drug Abuse Act of 1986 expressly delayed" }, { "docid": "3404605", "title": "", "text": "parole and was returned to the Medical Center at Springfield, Missouri, where he is presently confined. The petitioner overlooks the provision of § 4207, Title 18 U.S.C., providing that a parole violator forfeits his good time earned: “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” (Emphasis supplied.) Petitioner also overlooks § 4205, Title 18 U.S.C., providing that the time he enjoyed on parole does not count in reduction of his sentence: “ * * * [T]he time the prisoner was on parole shall not diminish the time he was sentenced to serve.” As stated in Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966) : “ * * * [B]y violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to re lease and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C. § 4205 * * *.” See also: Clark v. Blackwell, 374 F.2d 952 (5th Cir. 1967); McKinney v. Taylor, 358 F.2d 689 (10th Cir. 1966). Moreover, it is generally recognized that a prisoner such as the petitioner must first exhaust his administrative remedies by applying to the Director of the Bureau of Prisons, and thereafter seek relief by way of habeas corpus in the district in which he is incarcerated. Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966). The petitioner here does not allege nor contend that he has exhausted his administrative procedures or remedies. A petition under § 2255, Title 28 U.S.C., presented to the sentencing court is an inappropriate remedy, and a petition for habeas corpus brought in the district of confinement can offer no relief until his administrative remedies have been exhausted. Petitioner asserts that he is “entitled to 4 months and 13 days jail time deductions from each of the sentence [sic] but I have not been given credit for the jail time”. The credit for time spent in custody" }, { "docid": "633764", "title": "", "text": "section 4202 of Title 18 ... shall not apply. 21 U.S.C. § 848(e). Section 4202 (later amended to become incorporated in 18 U.S.C. § 4205) provided: [wjhenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law. 18 U.S.C. § 4205(a). Hernandez relies on the 1984 Comprehensive Crime Control Act. That act deleted the words “section 4202 of title 18 ... shall not apply” from 21 U.S.C. § 848(e). Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 224(c), 98 Stat. 2030 (1984). Hernandez argues that the 1984 Crime Control Act amendment entitles him to eligibility for parole during the first fifteen years of his sentence. Hernandez is mistaken. The amendment to § 848(e) was technical in nature. The section of the Sentencing Reform Act in which Congress amended § 848(e) was part of the “Technical and Conforming Amendments.” Congress deleted the no-parole language to conform § 848(e) to the new federal sentencing scheme in which parole is abolished. See Gallardo v. Quinlan, 874 F.2d 186, 188 (3rd Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989). This technical amendment, in a congressional act which ultimately eliminates parole eligibility for all new prisoners, does not confer parole eligibility on prisoners who were previously ineligible for parole. See Farese v. Story, 823 F.2d 975 (6th Cir.1987). Moreover, the Sentencing Reform Act of 1984 applies only to those offenses occurring on or after its effective date, November 1,1987. See Sentencing Reform Act, Pub.L. No. 98-473, § 235(a)(1), 98 Stat. 2031, amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985). This court has previously held that the provisions of the new sentencing laws apply only if the underlying offense was committed after November 1, 1987. United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Hernandez claims the no-parole provision of §" }, { "docid": "976975", "title": "", "text": "forged security charge, and was sentenced to one year imprisonment to run consecutive to his unexpired sentence. In his habeas petition, appellant challenged the validity of executing the parole violation warrant subsequent to the expiration of the maximum term of the sentence. He also contended that good time earned prior to his being paroled should not have been forfeited. The district court correctly held that 18 U.S.C.A., § 4205 requires that a parole violator warrant be issued within the maximum term to which the violator was sentenced, but it does not require that the warrant be served within that time. Buchanan v. Blackwell, 5 Cir., 1967, 372 F.2d 451; Smith v. Blackwell, 5 Cir., 1966, 367 F.2d 539. That is the case here. Thus the execution of the warrant in issue was valid. Nor is appellant entitled to have his earned good time reinstated. When a parolee has violated the terms of his release, the Board of Parole may revoke his earned good time and require him to serve the full unexpired term of his original sentence. 18 U.S.C.A. § 4207; Smith v. Attorney General, 5 Cir., 1969, 420 F.2d 488; Lynch v. United States, 5 Cir., 1969, 414 F.2d 281. Affirmed. . We dispose of this case on the briefs and record, without oral argument, as provided by our Local Rule 18." }, { "docid": "23060440", "title": "", "text": "and other law enforcement officials so that they may work together and share information to achieve their objectives. Accordingly, the order of the District Court denying defendant Reyes’s motion to suppress is affirmed. . Both the 2000 and 2001 editions of the U.S. Sentencing Guidelines Manual § 5 D 1.3(c) (10) provide: (c) (Policy Statement) The following \"standard” conditions are recommended for supervised release!)] • ■ • (10) the defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. (emphasis added). . Parole was abolished in the federal criminal justice system as of November 1, 1987. Sentencing Reform Act of 1984, Pub.L. No. 98-473, Tit. II, §§ 218(a)(5), 235(a)(1), 98 Stat 1837, 2027, 2031, as amended by Sentencing Amendments Reform Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat 1728; see also 18 U.S.C. ch. 311, §§ 4201-4218. However, the United States Parole Commission will remain in existence until November 1, 2002, unless this expiration date is extended. Parole Commission Phaseout Act of 1996, Pub.L. No. 104-232, § 2(a), 110 Stat. 3055; see also Cohen, ante, § 1:12, at 1-21. “Since the repeal of the parole statutes, the [United States Parole Commission] supervises inmates convicted before repeal by enlisting [United States] probation officers to perform the functions of parole officers.” Wilson v. United States, 959 F.2d 12, 15 (2d Cir.1992) (citations omitted). It is expected that \"defendants sentenced ... for criminal conduct that occurred before [the] abolition [of parole] will be released from prison [on parole by the United States Parole Commission] under the supervision of [a United States] probation officer well into the [twenty-first] century. In contrast to persons on ... supervised release who are under the jurisdiction of the sentencing court, individuals released on parole ... remain in the legal custody of the Attorney General while serving a portion of their sentence of imprisonment in the community.” John P. Storm, What United States Probation Officers Do, 61 Fed. Probation 13, 15 (March 1997); see also" }, { "docid": "13768095", "title": "", "text": "these offenses by means of a continuing criminal enterprise contrary to 21 U.S.C. § 848.” 633 F.2d at 1016. . More specifically, the October 12, 1984 legislation relabelled old Section 841(b)(1)(A) to become new Section 841(b)(1)(B), with minor modifications, effective October 12, 1984. See Comprehensive Crime Control Act of 1984 (effective October 12, 1984), Pub.L. 98-473, § 502, 98 Stat. 2068. . At first, Congress provided for the deletion of special parole to be effective November 1, 1986. See Sections 224 and 235 of the 1984 Act, set out at (98 Stat.) 2030-31 of the 1984 U.S.Code Cong. & Admin. News. Section 235 of the 1984 Act fixes the effective date for the deletion of the special parole provision as \"the first day of the first calendar month beginning twenty-four months after the date of enactment [on October 12, 1984].\" 1984 U.S.Code Cong. & Admin. News, at (98 Stat.) 2031. Subsequently, the effective date of the \"deletion” provision was extended an additional 12 months, to November 1, 1987. See Section 4 of the Sentencing Reform Amendments Act of 1985, Pub.L. 99-217, 1985 U.S.Code Cong. & Admin. News, at (99 Stat.) 1728. However, Sections 1002-04 of the Anti- Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207, effective October 27, 1986, repealed Section 841(b)(1)(B), including the not-yet effective provision deleting special parole. See, Codification Note, West’s 1987 Edition of the Federal Criminal Code and Rules, at 923. . 21 U.S.C. § 841(c) provides in relevant part, as follows: A special parole term imposed under this section ... may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment." }, { "docid": "7471252", "title": "", "text": "November 18, 1983 for his “non-peripheral role” in a drug conspiracy and importation. The Commission determined that John, like Skowronek, was required to serve one-third of his sentence before becoming eligible for parole, and set John’s presumptive parole date for February 4, 1993. 18 U.S.C. § 4205(a). The parole guidelines for John’s crimes had been calculated at 40-52 months. John is also presently incarcerated at the Federal Correctional Institute in Oxford, Wisconsin. At this time, both Skowronek and John have served time beyond the maximum calculated by the parole guidelines for their respective crimes, but each still has a number of months to serve before reaching the statutory minimum of one-third of his original sentence. After appellants’ incarceration began, Congress passed the Comprehensive Crime Control Act of 1984, (“CCCA”), Title II, Pub.L. 98-473, 98 Stat. 1976 (1984). Chapter II of this Act, entitled the Sentencing Reform Act of 1984 (“SRA”), took effect on November 1, 1987. See Sentencing Reform Amendments of 1985, Pub.L. 99-217, § 4, 99 Stat. 1728 (1985); Kimberlin v. Brewer, 825 F.2d 1157, 1158 (7th Cir.1987). The SRA abolished parole and the Parole Commission by repealing the parole provisions codified at 18 U.S.C. § 4201 et seq. CCCA, Pub.L. 98-473, ch. II, § 218(a)(5), 98 Stat. 2027 (1984). However, the SRA’s “savings provision” extended the life of the Commission and parole provisions “for five years after the effective date as to an individual convicted of an offense ... before the effective date....” CCCA, Pub.L. 98-473, ch. II, § 235(b)(1)(A), 98 Stat. 2032 (1984) (emphasis added). In the originally enacted SRA, Congress ordered the Commission to set a release date, for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, that is within the range that applies to the prisoner under the applicable parole guideline. A release date set pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with Parole Commission procedures, before the expiration of five years following the effective date" }, { "docid": "204550", "title": "", "text": "v. Lockhart, supra, 489 F.2d at 312. Under the controlling statutes, if a warrant for the retaking of a prisoner who has violated his parole is executed, 18 U.S.C. § 4206, the unexpired term of his imprisonment “shall begin to run from the date he is returned to the custody of the Attorney General under said warrant * * 18 U.S.C. § 4205. A prisoner thus “retaken” “shall be given an opportunity to appear before the Board [of Parole], a member thereof, or an examiner designated by the Board.” 18 U.S.C. § 4207. Two circuits have held that, since the operative act is the execution of the warrant, no statutory duty to provide a parole revocation hearing arises until after that event has taken place. Cook v. United States Attorney General, 488 F.2d 667 (5th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974); Small v. Britton, 500 F.2d 299 (10th Cir. 1974). Those circuits likewise found that the constitutional requirements of Morrissey v. Brewer, supra, were satisfied by the statutory scheme, since Morrissey only required that a revocation hearing take place within a reasonable time after the parolee is “taken into custody,” 408 U.S. at 488, 93 S.Ct. 2593, or in other words, upon the execution of the warrant. Apparently to avoid the effect of 18 U.S.C. § 4205, which would cause the original sentence to be served concurrently with the intervening sentence upon execution of the warrant, it has become common practice to lodge the warrant as a detainer, but to delay its execution, and thus the hearing thereon, until just prior to completion of the sentence being served. Dr. Ciccone and the Board of Parole contend that the Board’s policies and regulations nonetheless assure prisoners adequate due process. That basic principles of due process apply to persons in custody is not seriously contested in this case. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Thus, it is conceded that due process is required in parole revocation proceedings generally and that “the nature of the process that is due”" }, { "docid": "11811337", "title": "", "text": "v. Petrovsky, 756 F.2d 675 (8th Cir.1985) (per curiam); Richardson v. United States Parole Commission, 729 F.2d 1154, 1156 n.1 (8th Cir.1984) (per curiam); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982). Instead, in each of those cases, we determined that the federal parole guidelines did not result in a more onerous punishment. . See Portley, 444 U.S. at 1312, 100 S.Ct. at 715; Warren v. U.S. Parole Commission, 659 F.2d 183 at 195 (D.C.Cir.1981). The Sixth Circuit merely held without further elaboration that “(t]here is no ex post facto violation in the retroactive application of the guidelines.” Stroud, 668 F.2d at 847. . See Dufresne, 744 F.2d at 1549-50; Warren, 659 F.2d at 193; Raifai v. United States Parole Commission, 586 F.2d 695, 698-99 (9th Cir.1978). The Supreme Court has twice expressly declined to consider whether retrospective application of the federal parole guidelines violates the ex post facto clause. See United States Parole Commission v. Geraghty, 445 U.S. 388, 390 n.1, 408, 100 S.Ct. 1202, 1205 n. 1, 1214-15, 63 L.Ed.2d 479 (1980); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). In each of those cases, the Court found it unnecessary to address any part of the ex post facto issue. . Parole Commission and Reorganization Act, ch. 311, 90 Stat. 219 (1976) (codified as amended at 18 U.S.C.A. §§ 4201-4218 (West 1985)) (repealing and replacing Act of June 25, 1948, P.L. 80-722, ch. 311, §§ 4201-4207, 62 Stat. 683, 854-55, and Act of Aug. 25, 1958, P.L. 85-752, §§ 3-5, 72 Stat. 845-47 (both codified as amended at 18 U.S.C. §§ 4201-4209 (1970)) (repealed 1976)). The Sentencing Reform Act of 1984 abolishes the parole system and replaces the current sentencing process with a system of sentencing guidelines, effective November 1, 1986. P.L. 98-473, tit. II, ch. II, 98 Stat. 1987; id. at § 218(a)(5), 98 Stat. 2027 (repealing chapter 311, currently codified as amended at 18 U.S. C.A. §§ 4201-4218 (West 1985)). The Parole" }, { "docid": "6848461", "title": "", "text": "sentence to 1035 days, entitling him to a release on December 26, 1958. It is well established that upon revocation of parole the prisoner shall be required to serve all or any part of the remainder of the term to which he was sentenced. 18 U.S.C.A. § 4164 provides the conditionally released prisoner is to be treated as if released upon parole. 18 U.S.C.A. § 4207 provides that when a parole is revoked a prisoner may be required to serve all or any part of the remainder of his sentence. The Board of Parole has power to revoke a conditional release. Upon revocation the prisoner may be required to serve the balance of his original sentence. The balance is ascertained by deducting the time actually served from the sentence imposed. A prematurely released prisoner is entitled to no credit upon his sentence for the number of days of his premature release. Upon revocation of his parole the prisoner forfeits good time earned and may be required to serve the portion of his sentence not previously served. Wooten v. Wilkinson, 5 Cir., 265 F.2d 211, 212; Yates v. Looney, 10 Cir., 250 F.2d 956, 957. The only case found which supports petitioner’s contention that upon revocation of parole he is required to serve only the good time to which he is legally entitled is the case of Verhuel v. Attorney General, D.C.Kan., 180 F.Supp. 154. We agree with the trial court’s conclusion that the Yates case, supra, decided by the 10th Circuit nullified the effect of the Verhuel decision. We further believe that the Wooten and Yates cases are based upon sound reasoning and correctly interpret the parole statutes. Petitioner’s contention that he has a vested right in industrial good time earned under 18 U.S.C.A. § 4162 is without merit. This statute on its face plainly shows that credit for industrial good time is given upon the same terms and conditions as good conduct commutation. The courts have uniformly held that industrial good time is subject to forfeiture upon parole violation. Wipf v. King, 8 Cir., 131 F.2d 33; Northcutt v." }, { "docid": "17575473", "title": "", "text": "prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” . Compare the statutory authority of the Parole Board vis-a-vis parole revocation, 18 U.S.C. §§ 4201-4210, with that of the various District Courts vis-a-vis probation revocation, 18 U.S.C. §§ 3651-3653. Note the breadth of the District Court’s authority: “As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require Mm to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” 18 U.S.C. § 3653. Similarly, the Parole Board, in revoking parole, may require the parolee “to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C. § 4207. . See Moore v. Reid, 142 F.Supp. 481 (D.D.C.1956), rev’d on other grounds, 100 U.S.App.D.C. 373, 240 F.2d 654 (1957). . See discussion of problems relating to revocation of probation and parole: Hink, The Application of Constitutional Standards of Protection to Probation, 29 U.Chi.L.Rev. 483 (1962) ; Weihofen, Revoking Probation, Parole or Pardon without a Hearing, 32 J. of Crim.L. & Criminology 531 (1941). . See I Davis, Administrative Law Treatise § 303 (1958). . 18 U.S.C. § 4205 provides: “A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.” The present section 4205 is an amalgamation of former §§ 717 and 723c of Title 18. Section 717 provided that a warrant may issue only upon “reliable .information.” The merger of" }, { "docid": "3404604", "title": "", "text": "other respects the sentences conformed with the Constitution and laws of the United States. The court had jurisdiction. Other than the allegation that he has not been given credit for jail time, no other collateral attack is made. No reasons are set forth which would authorize the court to vacate or set aside the sentences. Instead this petitioner asserts in his letters that the Bureau of Prisons has not properly computed his prison time, and since it is impossible for the Bureau to determine which sentence is being served, the sentences must be given concurrent effect. He cites §§ 4161 and 4163, Title 18 U.S.C. Contrary to the petitioner’s contentions the consecutive sentences are certain and unambiguous. They are clear, definite and so complete as to need no construction or supplementary interpretation by a court or ministerial officer. Their sequence is plain as is the beginning and ending of each sentence. It appears that the petitioner was paroled on April 6, 1966, and from the petitioner’s letters it seems evident that he subsequently violated his parole and was returned to the Medical Center at Springfield, Missouri, where he is presently confined. The petitioner overlooks the provision of § 4207, Title 18 U.S.C., providing that a parole violator forfeits his good time earned: “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” (Emphasis supplied.) Petitioner also overlooks § 4205, Title 18 U.S.C., providing that the time he enjoyed on parole does not count in reduction of his sentence: “ * * * [T]he time the prisoner was on parole shall not diminish the time he was sentenced to serve.” As stated in Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966) : “ * * * [B]y violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to re lease and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C." }, { "docid": "19060455", "title": "", "text": "discretion in revoking the conditional release, and that the petitioner was entitled to a hearing before a Federal District Court to determine whether the revocation was justified. A conditional release of a federal prisoner is in the nature of a privilege granted by Congress. A prisoner who faithfully observes the rules is entitled to a deduction from the term of his sentence and to be released at the expiration of his sentence less the good time which he has earned. 18 U.S.C.A. §§ 4161, 4163. After such release the prisoner is deemed to be on parole until the expiration of the maximum term or terms for which he was sentenced. 18 U.S.C.A. § 4164. If the terms of the parole or conditional release are violated, the Parole Board has authority to revoke the parole or release and to issue a warrant for the retaking of the parolee. Upon revocation, the parolee is returned to the custody of the Attorney General to serve his unexpired term which begins to run from the date of his return. 18 U.S.C.A. §§ 4205, 4207. The Parole Board may not act capriciously in revoking a parole or conditional release, but a revocation is within the discretion of the Board. If the Board revokes upon evidence or information showing a violation of parole or conditional release, it is not an abuse of its discretion, and the courts will not interfere in a habeas corpus proceeding. Christianson v. Zerbst, 10 Cir., 89 F.2d 40; Bowers v. Dishong, 5 Cir., 103 F.2d 464; Nave v. Bell, 6 Cir., 180 F.2d 198; Anderson v. Corall, 263 U.S. 193, 197, 44 S.Ct. 43, 68 L.Ed. 247; Zerbst v. Kid-well, 304 U.S. 359, 362, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808. In this case the petitioner had been found guilty of a misdemeanor and sentenced to serve 30 days in jail. Under such circumstances the Board was clearly acting within its discretion in revoking the conditional release. The judgment is affirmed." }, { "docid": "2084784", "title": "", "text": "prior to revocation so that he may be prepared to respond. 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972); see Vanes, 741 F.2d at 1202 (applying Morrissey to street time hearing). Where Morrissey has been violated, this court has held that “the district court should require the [Parole] Commission to hold a new revocation hearing and to provide [the petitioner] with notice of the information and witnesses which the Commission weighs against him.” Vargas v. U.S. Parole Comm’n, 865 F.2d 191, 195 (9th Cir.1988). It is true that issuance of the writ was not conditioned on remand to the Commission for a noticed rehearing in Raines and Vanes, but the availability of this remedy does not appear to have been suggested in either case. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . 18 U.S.C. § 4214(a)(2)(A) provides in pertinent part: Hearings ... shall be conducted by the Commission in accordance with the following procedures: (A) notice to the parolee of the conditions of parole alleged to have been violated, and the time, place, and purposes of the scheduled hearing.... In addition, 18 U.S.C. § 4213(c)(3) states: Any summons or warrant issued pursuant to this section shall provide the parolee with written notice of— (3) the possible action which may be taken by the Commission. Pub.L. 98-473, Title II, §§ 218(a)(5), 235, Oct. 12, 1984, 98 Stat. 2027, 2031, repealed sections 4213 and 4214 as of November 1, 1986. Sections 4213 and 4214 were therefore in effect at the time of Jessup's parole revocation hearing. . 28 CFR § 2.52(c)(2) reads in pertinent part: If the parolee has been convicted of a new offense committed subsequent to his release [on] parole, which is punishable by a term of imprisonment, forfeiture of the time from the date of such release to execution of the warrant shall be ordered, and such time shall not be credited to the service of the sentence." }, { "docid": "1427669", "title": "", "text": "violation of the release terms, the Commission’s supervisory authority over the releasee is at an end, and no violator warrant could be issued even if the Commission later became cognizant of a violation which had occurred within the period the releasee was deemed on parole. E.g., 28 C.F.R. § 2.44(c) (1981). See also Birch v. Anderson, 358 F.2d 520, 523 (D.C.Cir.1965). But see Schiffman v. Wilkinson, 216 F.2d 589, 591 (9th Cir. 1954), cert. denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719 (1955). At some point, the Commission’s scrutiny of a parolee’s behavior must end, and in the case of a mandatory releasee, Congress has decided to set that date at 180 days prior to the expiration of the mandatory releasee’s maximum term. Petitioner urges a more expansive construction of the relevant statutory language. Seizing on Congress’s use of the word “jurisdiction” in § 4210(b), petitioner first maintains that the Commission’s power to hear and decide the issue of whether he had violated the terms of his release terminated on June 8, 1981. Second, petitioner attempts to derive support for his position from the fact that 18 U.S.C. § 4205 was repealed by the Parole Commission and Reorganization Act of 1976, Pub.L.No.94-233, 90 Stat. 219. Section 4205 provided: A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve. This provision had been cited by courts which upheld parole revocation decisions made after the expiration of a releasee’s maximum term less 180 days so long as the violator warrant had issued before such date. E.g., Moore v. Smith, 412 F.2d 720 (7th Cir. 1969). Contending that the repeal of § 4205 evidences" } ]

[ { "docid": "6871555", "title": "", "text": "due process rights were not violated. 2. Benn appears to argue that his substantive due process rights were violated in three ways. First, he claims that Drs. Zerby and Mukerjee incompetently failed to recognize that he was not suicidal. Second, he asserts that he was kept in a room without a toilet. Third, he claims that he was forcibly given antipsychotic medication. “[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847, fn. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Wfiiether an incident “shocks the conscience” is a matter of law for the courts to decide, see Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and we have previously held that involuntary commitment under the MHPA does not in itself violate substantive due process. See Doby v. DeCrescenzo, 171 F.3d at 871 n. 4 (“[T]he MHPA authorizes seizures that., are ‘reasonable’ under the Fourth Amendment [and so] the MHPA meets the rationality test imposed by substantive due process analysis.”) In this case, none of the specific conduct that Benn alleges shocks the conscience. First, Benn’s complaints about Drs, Zerby or Mukerjee are insufficient. Benn claims that Drs. Zerby and Mukerjee exhibited “total incompetenc[e] .... [by failing] to understand that plaintiff was showing no suicidal ideation which merited his involuntary confinement.” Br. of Appellants at 13. But whether or not Drs. Zerby and Mukerjee properly analyzed Benn’s condition, their conduct did not violate substantive due process. In view of the events that led to Benn’s commitment and the steps taken after his arrivalat MCES, the doctors’ conduct was not conscience-shocking. Second, Benn’s allegation that he was temporarily kept in a room without a toilet is insufficient without further aggravating evidence to meet the high standard needed to state a substantive due process violation. As the District Court pointed out, Benn failed to produce any evidence that the defendants were aware" } ]

[ { "docid": "17177595", "title": "", "text": "the conscience” and entitles them to summary judgment. When addressing whether executive action reaches the level of shocking the conscience, the Third Circuit explained that the outcome of a dispositive motion is dependent “on the context in which the action takes place ... [and the] particular circumstances that confront those acting on the state’s behalf.” Schieber v. City of Philadelphia, 320 F.3d 409, 417 (3d Cir.2003). In Schieber, the Third Circuit relied on the Supreme Court’s decision County of Sacramento: We have ... rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process .... It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level .... Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence ... is a matter for closer calls. Schieber, 320 F.3d at 417-418 (citing County of Sacramento, 523 U.S. at 848-849,118 S.Ct. 1708). The Third Circuit acknowledged that the “shocks the conscience” standard varies depending on the factual context and the environment in which the decision was made: Where a defendant is “confronted with a hyperpressurized environment such as a high-speed chase ... it is usually necessary to show that the officer deliberately harmed the victim.” Estate of Smith v. Marasco (Smith II), 430 F.3d 140, 153 (3d Cir.2005) (quotations and citations omitted). Where a defendant has “the luxury of proceeding in a deliberate fashion ... deliberate indifference may be sufficient to shock the conscience.” Id. [ (quotations and citations omitted); see also Nicini [v. Morra], 212 F.3d [798] at 810 (3d" }, { "docid": "2773097", "title": "", "text": "at 1718. At the other end of the spectrum, “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. (quotation omitted). “Whether the point of conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Id. (citations and quotations omitted). Whether conduct falling within this “middle range” reaches the level of conscience shocking depends on the facts and circumstances of each individual case. Lewis, 523 U.S. at 851, 118 S.Ct. at 1719. For example, in the context of a pretrial detention, the culpability requirement for a due process violation may be satisfied by showing the officials were deliberately indifferent to the needs of the detainees. Id.; but cf. Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (holding that “deliberate indifference” is insufficient to show officer liability in a prison riot because in those circumstances liability should turn on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”). However, deliberate indifference is insufficient to satisfy the culpability requirement applicable to substantive due process claims arising from the unintentional killing of an individual by law enforcement officers during a high-speed chase. See Lewis, 523 U.S. 833, 118 S.Ct. 1708. Specifically, the Court in Lewis held that in light of the unforeseen circumstances demanding the officer’s instant judgment in a pursuit case, demonstration of actual “purpose to cause harm unrelated to the legitimate object of arrest” was necessary to “satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” 523 U.S. at 836, 118 S.Ct. at 1711-12. Although the Supreme Court limited its holding in Lewis to the facts of that case, (i.e. high-speed police chases), the Ninth Circuit extended the Lewis explanation of “shocks the conscience” to “cases where" }, { "docid": "22397107", "title": "", "text": "id. at 846, 118 S.Ct. 1708 (quotation omitted). The Court further explained, “the substantive component of the Due Process Clause is violated by executive action only when it can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Id. at 847, 118 S.Ct. 1708 (quotation omitted). Accordingly, in a substantive due process challenge to an action taken by an executive branch official, “the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n. 8, 118 S.Ct. 1708; see also United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399-400 (3d Cir.2003) (“[O]ur cases have repeatedly acknowledged that executive action violates substantive due process only when it shocks the conscience.”). But “the measure of what is conscience shocking is no calibrated yard stick,” Lewis, 523 U.S. at 847, 118 S.Ct. 1708, and “[deliberate indifference that shocks in one environment may not be so patently egregious in another,” id. at 850, 118 S.Ct. 1708. The question of whether a given action “shocks the conscience” has an “elusive” quality to it. Estate of Smith v. Marasco (Smith I), 318 F.3d 497, 509 (3d Cir.2003). At one end of the spectrum of culpable conduct, negligent behavior can never rise to the level of conscience shocking. See Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (“[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). At the other end of the spectrum, actions “intended to injure in some way unjustifiable by any government interest” are those “most likely to rise to the conscience-shocking level.” Id. Acts that fall between the extremes of mere negligence and harmful intent require courts to make “closer calls,” based on a context-specific inquiry. Id. Because the “exact degree of wrongfulness necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a particular case,” Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999), we evaluate the conditions under which a defendant acted in order to ascertain the relevant" }, { "docid": "7279125", "title": "", "text": "shock the contemporary conscience.” Sacramento, 523 U.S. at 847 n. 8, 118 S.Ct. 1708. This stringent requirement exists to differentiate substantive due process, which is intended only to protect against arbitrary government action, from local tort law. See id. at 845-46, 848-49, 118 S.Ct. 1708; Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see also Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Hence, while it may be possible under District of Columbia tort law for a plaintiff to obtain a remedy by proving mere negligence or failure to exercise due care, this “lowest common denominator of customary tort liability” is “categorically beneath the threshold of constitutional due process.” Sacramento, 523 U.S. at 848-49, 118 S.Ct. 1708. It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. Id. at 849, 118 S.Ct. 1708. Hence, in Sacramento, in the context of a highspeed chase by police officers that accidentally killed a fleeing motorcyclist, the Supreme Court held that the plaintiff must satisfy the higher “intent to harm” standard to prove that the officers’ behavior was conscience-shocking. See id. at 854, 118 S.Ct. 1708. The Supreme Court in Sacramento acknowledged, however, that in some circumstances the “point of the conscience shocking” can be reached by proving “something more than negligence but ‘less than intentional conduct, such as recklessness or gross negligence.’ ” Id. at 849, 118 S.Ct. 1708 (citation omitted). While such proof “is a matter for closer calls,” id., this lower threshold, the Supreme Court has instructed, is appropriate in circumstances where the State has a heightened obligation toward the individual. For example, where the State has taken a person into custody, it “so restrains [his] liberty that it renders him unable to care for" }, { "docid": "14202860", "title": "", "text": "399-400 (3d Cir.2003) (acknowledging that “executive action violates substantive due process only when it shocks the conscience”). What is shocking to the conscience inevitably depends to a degree on whose conscience is being tested; so, to put it mildly, the standard has some give in it. That flexibility is manifested in the context-sensitivity of the standard. See Lewis, 523 U.S. at 847, 118 S.Ct. 1708 (noting that the measure of what “shocks the conscience” is not precise); Kaucher v. County of Bucks, 455 F.3d 418, 426 (3d Cir.2006) (noting that “[t]he question of whether a given action shocks the conscience has an elusive quality to it” (internal quotation marks and citation omitted)). What “shocks in one environment may not be so patently egregious in another.” Lewis, 523 U.S. at 850, 118 S.Ct. 1708. Therefore, “our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id. As a general matter, it is governmental “conduct intended to injure” that is “most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (internal citations and quotation marks omitted). Conscience-shocking behavior may also arise in the form of injuries produced by deliberate indifference, although, where the conduct was not intentional, it is a “closer call[ ].” Id. “Negligently inflicted harm,” by contrast, “is categorically beneath the threshold of constitutional due process” and will never be conscience shocking. Id. (citing Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Moving past generalities, our analysis here is informed by reference to specific kinds of executive conduct that have previously been characterized as conscience-shocking or not. For example, in United States v. Guevremont, we held that the correction of an illegal sentence is permissible even if it results in an increase in the sentence. 829 F.2d 423, 427-28 (3d Cir.1987). We concluded that, absent judicial vindictiveness, an increase to make the sentence conform to the intention of the sentencing judge is constitutional. Id. at 428. Guevremont thus suggests that the" }, { "docid": "16766723", "title": "", "text": "of the tort law’s spectrum of culpability.” Id. at 848, 118 S.Ct. 1708. “At one end of the spectrum is negligence, which is categorically insufficient to constitute conscience-shocking conduct.” Taylor v. Altoona Area School District, 513 F.Supp.2d 540, 565 (W.D.Pa.2007). At the other end of the spectrum is “conduct intended to injure in some way unjustifiable by any governmental interest,” which is “the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. “Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Id. (internal citation and quotation marks omitted). The level of culpability required for a state official’s conduct to shock the conscience increases as the time that he or she has to deliberate decreases. Phillips, 515 F.3d at 240. Where a state official enjoys the luxury of “having time to make unhurried judgments,” his or her “deliberate indifference” to an individual’s welfare may be conscience-shocking. Lewis, 523 U.S. at 853, 118 S.Ct. 1708. The United States Court of Appeals for the Third Circuit has left open “the possibility that deliberate indifference might exist without actual knowledge of a risk of harm when the risk is so obvious that it should be known.” Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir.2006). Where a state official is not in a “hyper-pressurized environment” but nevertheless acts without “the luxury of proceeding in a deliberate fashion,” his or her conduct is generally deemed to be conscience-shocking only if it reaches “a level of gross negligence or arbitrariness” that “exceed[s] both negligence and deliberate indifference.” Miller v. City of Philadelphia, 174 F.3d 368, 375-376 (3d Cir.1999). An official acts with this level of culpability when he or she “consciously disregards” a “great risk” that his or her conduct will result in harm to the aggrieved individual. Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir.2002). Where a state" }, { "docid": "2773096", "title": "", "text": "and who were not intentionally sprayed may only pursue excessive force claims under the substantive due process clause of the Fourteenth Amendment. The Fourteenth Amendment protects against the government’s interference with “an individual’s bodily integrity.” Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir.1996) (en banc) (citing Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)). The threshold standard for judging a substantive due process claim is whether the challenged governmental action is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847 n. 8, 118 S.Ct. at 1717. As the Supreme Court has recognized, “the measure of what is conscience shocking is no calibrated yard stick....” Id. at 847, 118 S.Ct. at 1717. What shocks the conscience in one situation may not shock the conscience in another. Id. at 850, 118 S.Ct. at 1718-19. At one end of the culpability spectrum is mere negligence, which is never sufficient to establish a constitutional violation. Id. at 849, 118 S.Ct. at 1718. At the other end of the spectrum, “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. (quotation omitted). “Whether the point of conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Id. (citations and quotations omitted). Whether conduct falling within this “middle range” reaches the level of conscience shocking depends on the facts and circumstances of each individual case. Lewis, 523 U.S. at 851, 118 S.Ct. at 1719. For example, in the context of a pretrial detention, the culpability requirement for a due process violation may be satisfied by showing the officials were deliberately indifferent to the needs of the detainees. Id.; but cf. Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (holding that “deliberate indifference” is insufficient to show" }, { "docid": "503705", "title": "", "text": "care); Miller v. City of Philadelphia, 174 F.3d 368, 370 (3d Cir.1999) (applying the “shocks the conscience” test to the claim of a mother and her children for an alleged violation based on “an emergency ex parte child custody hearing” after which the City defendants removed two of Miller’s children from her custody). Whether executive action is conscience shocking and thus “arbitrary in the constitutional sense” depends on the context in which the action takes place. In particular, the degree of culpability required to meet the “shock the conscience” standard depends upon the particular circumstances that confront those acting on the state’s behalf. As the Court explained in Lewis: We have ... rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of con stitutional due process.... It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.... Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence ... is a matter for closer calls. ^ ^ Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. 523 U.S. at 848-49, 850, 118 S.Ct. 1708 (quotation omitted). Accordingly, with the guidance of Lewis and its progeny, I will undertake the required “exact analysis of [the] circumstances” facing Officers Woods and Scherff on the morning of May 7, 1998. IV. The Lewis Court ultimately held “that high-speed chases with" }, { "docid": "22893167", "title": "", "text": "to amount to a Fourteenth Amendment violation is far from an exact science. See id. at 847, 118 S.Ct. 1708 (“While the measure of what is conscience-shocking is no calibrated yard stick, it does ... point the way.” (internal quotations marks and alterations omitted)). Depending on the circumstances, different degrees of fault may rise to the level of conscience-shocking. See Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999) (“The exact degree of wrongfulness necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a particular case.”). It is clear that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” and that conduct “intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. Nonetheless, under certain circumstances, conduct “falling within the middle range” of culpability — that is, conduct that is more than negligent but less than intentional — can give rise to liability under the Fourteenth Amendment. Id. As noted above, the Parents contend that the defendants failed to protect Young from a known and substantial risk of harm while he was in their custody and that the defendants were deliberately indifferent to his medical needs. These claims fall within the limited circumstances where conduct in the “middle range” of culpability — specifically, conduct that amounts to “deliberate indifference” — is viewed as sufficiently shocking to the conscience that it can support a Fourteenth Amendment claim. See, e.g., Nicini v. Morra, 212 F.3d 798, 810 (3rd Cir.2000) (en banc) (noting that “[i]n some circumstances, conduct that is deliberately indifferent will shock the conscience”); Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir.1998) (explaining that deliberate indifference “is merely the manifestation in certain situations of a more general inquiry, which is whether the government conduct at issue shocks the conscience” (internal quotation marks omitted)). In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that prison officials violate the Eighth Amendment" }, { "docid": "8329271", "title": "", "text": "due process by failing to conduct an adequate investigation. To establish a substantive due process violation, Akins must demonstrate that a fundamental right was violated and that the conduct shocks the conscience. Moran v. Clarke, 296 F.3d 638, 651 (8th Cir.2002) (en banc) (Bye, J., concurring and writing for a majority on this issue). Whether the alleged conduct shocks the conscience is a question of law. Terrell v. Larson, 396 F.3d 975, 981 (8th Cir.2005) (en banc). “[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see Moran, 296 F.3d at 647 (“[Sjubstantive due process is concerned with violations of personal rights ... so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”) (internal quotations omitted) (quoting In re Scott County Master Docket, 672 F.Supp. 1152, 1166 (D.Minn.1987)). Conduct intended to injure will generally rise to the conscience-shocking level, but negligent conduct falls “beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. Deliberate indifference or recklessness falls somewhere between negligent and intentional actions. Id. at 849, 851, 118 S.Ct. 1708. This middle ground is “a matter for closer calls.” Id. at 849, 118 S.Ct. 1708. The Supreme Court has adopted a context-specific approach in determining whether deliberately indifferent or reckless conduct is egregious enough to state a substantive due process claim. Id. at 850, 118 S.Ct. 1708. In Wilson v. Lawrence County, we recognized a substantive due process cause of action for reckless investigation in circumstances in which the state actor had the opportunity to consider “various alternatives prior to selecting a course of conduct.” 260 F.3d 946, 956-57 (8th Cir.2001). To establish a violation of" }, { "docid": "16823946", "title": "", "text": "pp. 27-28, ¶ 101). Neither party offers much legal analysis as to the cognizability of Goldhaber’s substantive due process claims. (Document Nos. 29, p. 15, 34, pp. 24-25). Nonetheless, the Court notes that the Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273 (1992). The novelty of the facts alleged in the Amended Complaint makes the substantive due process issues in this case all the more complicated, since “[r]ules of due process are not [] subject to mechanical application in unfamiliar territory.” Lewis, 523 U.S. at 850, 118 S.Ct. at 1718, 140 L.Ed.2d at 1060. In a challenge to executive action under the Due Process Clause, “the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847, 118 S.Ct. at 1717, 140 L.Ed.2d at 1058, n. 8. Negligent conduct is categorically below the conscience-shocking level of culpability needed to establish a violation of the Due Process Clause. Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 670, 88 L.Ed.2d 677, 683 (1986) (“The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials.”). On the other hand, “conduct intended to injure in some way unjustifiable by any governmental interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718, 140 L.Ed.2d at 1059. “Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718, 140 L.Ed.2d at 1059 (citation and internal quotation marks omitted). The critical" }, { "docid": "11390066", "title": "", "text": "plaintiff ordinarily must identify ‘cases of controlling authority ... at the time of the incident ... [or] a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.’ ”) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). As we observed in Graves, “[t]he Supreme Court’s decision in Lewis is the starting point when considering a substantive due process claim resulting from a highspeed chase.” Graves, 450 F.3d at 1221. In Lewis, a police officer pursued teenagers on a motorcycle at speeds reaching 100 miles per hour, when they refused to obey his command to stop. When the motorcycle made a sharp turn, one of the teenagers fell off and was killed when the officer was unable to stop his car in time and struck the teen. In acknowledging the availability of a substantive due process claim where there is an executive abuse of power, the Court held that a “cognizable level of executive abuse of power [is] that which shocks the conscience.” Lewis, 523 U.S. at 846, 118 S.Ct. 1708; see also Graves, 450 F.3d at 1221. While noting that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” the Court observed that it is a “closer call[ ]” whether “the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence.” Lewis, 523 U.S, at 849, 118 S.Ct. 1708; see also Radecki v. Barela, 146 F.3d 1227, 1231 (10th Cir.1998). As applied to high-speed police pursuits, the Court held that “highspeed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Lewis, 523 U.S. at 854, 118 S.Ct. 1708. The Court acknowledged, however, that circumstances are important in evaluating the existence of a substantive due process claim: “Deliberate indifference that shocks in" }, { "docid": "22900545", "title": "", "text": "context-specific applications of the general right to be free of excessive force are necessary to establish clearly the right’s parameters. Indeed, a fair reading of the Supreme Court’s decision in County of Sacramento supports this culpability continuum for determining the applicability of qualified immunity to excessive force claims: [Cjonduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level .... Whether the point of conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls. ... Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.... That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. County of Sacramento, 523 U.S. at 849-50, 118 S.Ct. 1708 (emphases added) (internal citations and quotation marks omitted). B. Supervisors The school’s former and current superintendents and the school principal (“the Supervisors”) challenge the district court’s denial of their qualified immunity defense. The Supervisors argue that the factual allegations in the complaint fail to establish that they were “personally involved” in the deprivation of T.J.’s substantive due process rights and that, as a result, they are entitled to qualified immunity because they did not violate T.J.’s right to be free of excessive force. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (internal quotation marks omitted). Personal involvement of a supervisory official may be established “by evidence that: (1) the [official] participated directly in the alleged constitutional" }, { "docid": "22921201", "title": "", "text": "Fourteenth Amendment liability will attach to “conduct intended to injure in some way unjustifiable by any governmental interest.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (emphasis added). “Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or ‘gross negligence’ is a matter for closer calls.” Id. (quotation and citation omitted). Whether conduct falling within this “middle range” reaches the level of conscience shocking depends upon the facts and circumstances of the individual case. As the Supreme Court recently explained, conduct “that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id. at 850, 118 S.Ct. 1708. For example, in the context of pretrial detention, the fault requirement for a due process violation may be satisfied by showing that state officials were deliberately indifferent to the basic medical needs of detainees. Id.; see also Heflin v. Stewart County, 958 F.2d 709, 716 (6th Cir.), cert. denied, 506 U.S. 998, 113 S.Ct. 598, 121 L.Ed.2d 535 (1992). By contrast, in Lewis, 523 U.S. at 854, 118 S.Ct. 1708, the Supreme Court held that even “deliberate indifference” is insufficient to demonstrate a Fourteenth Amendment violation on the basis of police conduct during a high speed vehicle chase. “[T]he critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 373 (9th Cir.1998) (reviewing circuits’ treatment of Lewis decision). As the Lewis Court explained, the deliberate indifference standard “is sensibly employed only when actual deliberation is practical.” Id. at 851, 118 S.Ct. 1708. The Court noted, for example, that “liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments," }, { "docid": "8329272", "title": "", "text": "it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”) (internal quotations omitted) (quoting In re Scott County Master Docket, 672 F.Supp. 1152, 1166 (D.Minn.1987)). Conduct intended to injure will generally rise to the conscience-shocking level, but negligent conduct falls “beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. Deliberate indifference or recklessness falls somewhere between negligent and intentional actions. Id. at 849, 851, 118 S.Ct. 1708. This middle ground is “a matter for closer calls.” Id. at 849, 118 S.Ct. 1708. The Supreme Court has adopted a context-specific approach in determining whether deliberately indifferent or reckless conduct is egregious enough to state a substantive due process claim. Id. at 850, 118 S.Ct. 1708. In Wilson v. Lawrence County, we recognized a substantive due process cause of action for reckless investigation in circumstances in which the state actor had the opportunity to consider “various alternatives prior to selecting a course of conduct.” 260 F.3d 946, 956-57 (8th Cir.2001). To establish a violation of due process based on a failure to investigate, Akins must show that Trammell and Vaughan “intentionally or recklessly failed to investigate, thereby shocking the conscience.” Amrine v. Brooks, 522 F.3d 823, 834 (8th Cir.2008). We have held that the following circumstances indicate reckless or intentional failure to investigate that shocks the conscience: (1) evidence that the state actor attempted to coerce or threaten the defendant, (2) evidence that investigators purposefully ignored evidence suggesting the defendant’s innocence, (3) evidence of systematic pressure to implicate the defendant in the face of contrary evidence. See Amrine v. Brooks, 522 F.3d 823, 833-35 (8th Cir.2008) (summarizing our cases that address the failure to investigate as a substantive due process violation). An officer’s negligent failure to investigate inconsistencies or other leads is insufficient to establish conscience-shocking misconduct. Id. at 835; Clemmons v. Armontrout, 477 F.3d 962, 966 (8th Cir.2007) (rejecting the contention that failure to investigate another suspect shocked the conscience because there was “no explanation for why these actions constitute recklessness as opposed to mere negligence”). Akins highlights multiple" }, { "docid": "16766722", "title": "", "text": "a specific job” for the purpose of determining whether an individual has an interest that is worthy of constitutional protection. Piecknick, 36 F.3d at 1259, 1262. This line of reasoning suggests that “the liberty to pursue a calling or occupation,” unlike “the right to a specific job,” is entitled to substantive due process protection. Wright v. Genesee County Corp., 659 F.Supp.2d 842, 849-850 (E.D.Mich.2009). The standard for determining when an executive officer violates an individual’s substantive due process rights was articulated by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In a substantive due process challenge to the actions of an executive officer, “the threshold question is whether the behavior of [that] officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847, n. 8, 118 S.Ct. 1708. The conscience-shocking concept “duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law’s spectrum of culpability.” Id. at 848, 118 S.Ct. 1708. “At one end of the spectrum is negligence, which is categorically insufficient to constitute conscience-shocking conduct.” Taylor v. Altoona Area School District, 513 F.Supp.2d 540, 565 (W.D.Pa.2007). At the other end of the spectrum is “conduct intended to injure in some way unjustifiable by any governmental interest,” which is “the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. “Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Id. (internal citation and quotation marks omitted). The level of culpability required for a state official’s conduct to shock the conscience increases as the time that he or she has to deliberate decreases. Phillips, 515 F.3d at 240. Where a state official enjoys the luxury of “having time to make" }, { "docid": "22893166", "title": "", "text": "brief and during oral argument they specifically disavowed any contention that the law enforcement officers improperly took Young into custody or that they used excessive force when taking him into custody. Instead, the Parents proceed solely under the Fourteenth Amendment, contending that the defendants violated Young’s constitutional rights by failing to protect him from a known risk of harm (the risk of asphyxiation when restrained in a prone position, particularly after being sprayed with pepper spray), or, stated somewhat differently, that the defendants violated Young’s constitutional rights by their indifference to his serious medical needs brought about by the pepper spray, restraints, and face-down positioning. Broadly speaking, the substantive due process provision of the Fourteenth Amendment protects against egregious, arbitrary governmental conduct. See County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Only governmental conduct that “shocks the conscience” is actionable as a violation of the Fourteenth Amendment. Id. at 846, 118 S.Ct. 1708. As the Supreme Court recognized in Lewis, however, determining whether conduct is sufficiently egregious to amount to a Fourteenth Amendment violation is far from an exact science. See id. at 847, 118 S.Ct. 1708 (“While the measure of what is conscience-shocking is no calibrated yard stick, it does ... point the way.” (internal quotations marks and alterations omitted)). Depending on the circumstances, different degrees of fault may rise to the level of conscience-shocking. See Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999) (“The exact degree of wrongfulness necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a particular case.”). It is clear that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” and that conduct “intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. Nonetheless, under certain circumstances, conduct “falling within the middle range” of culpability — that is, conduct that is more than negligent but less than intentional — can give rise to liability" }, { "docid": "22921200", "title": "", "text": "The Appellant must demonstrate that the state acted with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment. As the Supreme Court has explained, this requires that the § 1983 plaintiff show that the challenged action was so “egregious” that it can be said to be “arbitrary in the constitutional sense.” Id. at 846, 118 S.Ct. 1708 (quotation omitted). The Supreme Court, in elaborating upon this standard, has repeatedly instructed that the Fourteenth Amendment protects only against abuse of executive power which “shocks the conscience.” Id. To be sure, the “shocks the conscience” standard is “no calibrated yard stick.” Id. at 847, 118 S.Ct. 1708. At a minimum, the standard requires a showing beyond mere negligence. Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “Far from an abuse of power, lack of due care ... suggests no more than a failure to measure up to the conduct of a reasonable person.” Id. At the other end of the spectrum, it is generally agreed that Fourteenth Amendment liability will attach to “conduct intended to injure in some way unjustifiable by any governmental interest.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (emphasis added). “Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or ‘gross negligence’ is a matter for closer calls.” Id. (quotation and citation omitted). Whether conduct falling within this “middle range” reaches the level of conscience shocking depends upon the facts and circumstances of the individual case. As the Supreme Court recently explained, conduct “that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id. at 850, 118 S.Ct. 1708. For example, in the context of pretrial detention, the fault requirement for a due process violation may be satisfied by showing that" }, { "docid": "16823947", "title": "", "text": "S.Ct. at 1717, 140 L.Ed.2d at 1058, n. 8. Negligent conduct is categorically below the conscience-shocking level of culpability needed to establish a violation of the Due Process Clause. Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 670, 88 L.Ed.2d 677, 683 (1986) (“The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials.”). On the other hand, “conduct intended to injure in some way unjustifiable by any governmental interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718, 140 L.Ed.2d at 1059. “Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718, 140 L.Ed.2d at 1059 (citation and internal quotation marks omitted). The critical question is whether Gold-haber’s allegations are the proper subject of a substantive due process analysis. The generalized, imprecise notion of “substantive due process” is inapplicable where a particular provision of the Bill of Rights is directly applicable to a claim. Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114, 123-124 (1994) (plurality opinion). It cannot be doubted that substantive due process protections can sometimes manifest themselves in the prison context. Doe v. Delie, 257 F.3d 309, 323 (3d Cir.2001) (determining that prisoners retain a substantive due process right to the privacy of their medical information). Nevertheless, because of the unique nature of incarceration, the conditions of a prisoner’s confinement are generally governed by the Eighth Amendment’s ban on cruel and unusual punishment rather than on the substantive component of the Due Process Clause. Mohamed v. Tattum, 380 F.Supp.2d 1214, 1223-1224 (D.Kan.2005) (holding that a failure-to-protect claim in the prison setting is governed by the Eighth Amendment rather than the notion of substantive due process). The Court does not understand Goldhaber" }, { "docid": "503706", "title": "", "text": "would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.... Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence ... is a matter for closer calls. ^ ^ Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. 523 U.S. at 848-49, 850, 118 S.Ct. 1708 (quotation omitted). Accordingly, with the guidance of Lewis and its progeny, I will undertake the required “exact analysis of [the] circumstances” facing Officers Woods and Scherff on the morning of May 7, 1998. IV. The Lewis Court ultimately held “that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Id. at 854, 118 S.Ct. 1708. The analysis it followed in reaching this conclusion compared the circumstances of officers in high-speed chases, prison doctors in providing health care, and prison managers in dealing with riots. In the course of that comparison, the Court identifies the kinds of factors that should be considered in deciding whether and when executive action shocks the conscience. The Court began by pointing out that prison doctors face liability if they are deliberately indifferent to the serious medical needs of their prisoners. It noted that the “deliberate indifference” standard “is sensibly employed only when actual deliberation is practical, ... and [that] in the custodial situation of a prison, forethought about an inmate’s welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.” Id. at 851, 118 S.Ct. 1708 (citing Whitley v. Albers, 475 U.S. 312, 320, 106" } ]

[ { "docid": "3720670", "title": "", "text": "create poor labor-managment relations, although it is not clear whether the favoritism was racially motivated. Finally, she compared her own experience and qualifications with those of Wright. At the close of Lucas’ evidence, the trial court dismissed her claim under Rule 41(b). He found no evidence that race was involved in the promotion and ruled that Lucas failed to establish a prima facie case. I. A plaintiff can establish a prima facie case of disparate treatment by direct or indirect evidence of discrimination, or under the McDonnell Douglas framework. See Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir.1986) (en banc). To establish a prima facie case under McDonnell Douglas, a plaintiff must show (1) she is a member of a protected group; (2) she applied and was qualified for a job that was open; (3) she was rejected, and (4) the job remained vacant. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The prima facie case creates an inference that unlawful discrimination was the reason for the employment action. To rebut this inference, the employer must “articulate some legitimate, nondiscriminatory reason” for its action. Id. The plaintiff has the opportunity to show that the stated reason is a mere pretext for a racially motivated decision. Id. at 804, 93 S.Ct. at 1825. Within this framework the ultimate burden of persuasion remains on the plaintiff to prove intentional discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207, 215 (1981). The present case differs from McDonnell Douglas in that the position did not remain open after Lucas’ rejection. This court has stated that the inference of discrimination is weakened by this fact, and that a plaintiff like Lucas must produce “some other evidence that [her] race was a factor considered by [her] employer in not granting [her] the promotion.” Holmes, 794 F.2d at 147. The present case also involves “reverse discrimination;” a member of the white majority is alleging racial discrimination. The Supreme Court has held that Title VII protects whites as well as minorities. McDonald v. Santa" } ]

[ { "docid": "576217", "title": "", "text": "application for an Assistant Manager position at another facility. Plaintiff now contends that he was discriminated against by not receiving raises and being denied tuition reimbursement, and that he was “constructively discharged” from work. These latter claims set out different theories of discrimination than those alleged in the EEOC Charge form. As such, Plaintiff has not exhausted his EEOC remedies on those claims prior to bringing suit. See King v. Seaboard Coast Line Railroad, 538 F.2d 581, 583 (4th Cir.1976); Hicks v. Baltimore Gas & Electric Co., 829 F.Supp. 791, 794 (D.Md.1992). While these claims are procedurally barred, the Court will address these allegations along with the other claims. C. Plaintiff’s Title VII Race Discrimination Claims Plaintiff has presented no direct evidence of discriminatory intent. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). As a consequence, Plaintiff must rely on inferential proof to make out his case under the burden-shifting criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As a general matter, to make out a prima facie case for employment discrimination, the Plaintiff must show that: (1) he is a member of a protected group; (2) he earned satisfactory performance marks, (3) he suffered an adverse employment action; and (4) other similarly situated employees outside his protected class were treated more favor ably. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Carter v. Ball, 33 F.3d 450, 456 (4th Cir.1994), citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Cook v. CSX Transportation Corp., 988 F.2d 507, 511 (4th Cir.1993) citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Causey v. Balog, 162 F.3d 795 (4th Cir.1998). To the extent Plaintiff is asserting a disparate treatment theory for failure to promote, he must show: (1) the plaintiff is" }, { "docid": "6644482", "title": "", "text": "of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (citations and quotations omitted). Our review of a district court’s grant of summary judgment is de novo. Id. Absent proof of direct evidence of discriminatory motive, a discrimination action is analyzed under the McDonnell Douglas burden-shifting framework, and the claim proceeds in three stages. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. Second, the defendant may rebut the prima facie case by articulating a non-discriminatory rationale for its action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Third, the plaintiff must prove that the defendant’s proffered rationale was merely pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To establish a prima facie case of race or sex discrimination in a failure-to-promote claim, a plaintiff must show that: “(1) she is a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead.” Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir.1996). Failure to formally apply for a position does not bar a plaintiff from establishing a prima facie case, as long as the plaintiff “made every reasonable attempt to convey [her] interest in the job to the employer.” Chambers" }, { "docid": "10545115", "title": "", "text": "treatment under Title VII. As such, Mackey must proceed in establishing that these alleged employment actions were motivated by discriminatory animus. Thus, to meet her burden on summary judgment, Mackey can offer direct or circumstantial evidence, or utilize the proof scheme set forth in McDonnell Douglas Corp. v. Green. “To satisfy ordinary principles of proof, [Mackey] must provide direct evidence of a purpose to discriminate or circumstantial evidence of sufficiently probative force to raise a genuine issue of material fact.” Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir.1996) (citing Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.1988)). The record here provides very little, if any, direct or indirect evidence of discriminatory conduct undertaken by the Defendant. As mentioned, Mackey has alleged that Roth, at times, conducted informal meetings in the men’s restroom, and has difficulty relating to women in managerial positions. However, these bald allegations and unsubstantiated assertions cannot, without more, establish a prima facie case of gender discrimination. See Evans, 80 F.8d at 959. As such, Mackey will have to resort to the McDonnell Douglas proof scheme to satisfy her burden. Since Mackey can only rely upon circumstantial evidence to prove that an illicit criterion motivated her employer to take the alleged adverse employment actions, its failure to promote, she must prove that (1) she is a member of a protected class; (2) her employer had an open position for which she applied or sought to apply; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Evans, 80 F.3d at 959; Carter v. Ball, 33 F.3d 450, 458 (4th Cir.1994). Once proven, an inference of discrimination is raised which Defendant may rebut with evidence of a legitimate, nondiscriminatory reason for its actions. Evans, 80 F.3d at 959; Carter, 33 F.3d at 459. If the Defendant succeeds,- the inference of discrimination drops from the case, id., and" }, { "docid": "22975717", "title": "", "text": "are direct evidence that race discrimination actually motivated Unity’s decision to terminate Clarence Putman. See Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281-82 (8th Cir.1995). B. Putman next argues that summary judgment was inappropriate because he presented sufficient indirect evidence of race discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that familiar three-step formula, plaintiff must first present a prima facie case of intentional discrimination. The burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its action. If defendant meets that minimal burden, plaintiff must show that the proffered nondiscriminatory reason is merely a pretext for unlawful race discrimination. In this case, the district court concluded that Putman failed to present a prima facie case of intentional race discrimination “because he has failed to present evidence that similarly situated white employees were treated differently than he.” In the McDonnell Douglas analysis, “[t]he prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiffs rejection,” thereby “giv[ing] rise to an inference of unlawful discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The concept is flexible, and the burden of establishing a prima facie case “is not onerous.” Burdine, 450 U.S. at 253 & n. 6, 101 S.Ct. 1089. McDonnell Douglas involved an allegedly discriminatory refusal to hire. The Court noted that plaintiff in such a case may satisfy his prima facie case burden “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. This showing eliminates two common non discriminatory reasons for a refusal to hire — that the plaintiff was not qualified for the" }, { "docid": "23484150", "title": "", "text": "contends that he presented direct evidence of DaimlerChrysler’s discrimination by virtue of Slater’s deposition testimony that, in his opinion, Hopson’s race was a factor in the company’s decision to deny him the promotions for which he applied. Although Slater is a manager in the company, he admitted that he had no involvement in the decision-making process with respect to the particular jobs at issue. Furthermore, he did not reveal the basis for his opinion. Thus, while Slater’s opinion may constitute circumstantial evidence of discrimination, even if believed, it does not require the conclusion that unlawful discrimination was a motivating factor in DaimlerChrysler’s actions. See Nguyen, 229 F.3d at 563 (stating that direct evidence includes a decision-maker’s express statement of a desire to take action against employees who are members of a protected class). Therefore, the district court properly concluded that Plaintiff-Appellant fáiled to raise a genuine issue of material fact by presenting direct evidence of Defendant-Appellee’s discriminatory intent. B. Circumstantial Evidence of Discrimination 1. Title VII The analytical framework governing Title VII cases in the absence of direct evidence of discrimination is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference of discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see Neuman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001) (stating that to establish a prima facie case, a Title VII plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the job; (3) that he suffered an adverse employment decision; and (4) that the job was given to a person outside his protected class). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets" }, { "docid": "13956750", "title": "", "text": "non-moving party, no genuine issue of material fact exists. Id. See also Fed.R.Civ. Pro. 56(c). We address each of Durley’s claims in turn. A. Title VII Sex Discrimination Durley asserts that APAC failed to promote her to the position of Purchasing Agent because of her gender. A Title VII plaintiff may prove her case by direct or circumstantial evidence. Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir.1997). Because Durley relies on circumstantial evidence to allege discrimination, we apply the analytical 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), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Accordingly, Durley bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. In other words, she must demonstrate that: (1) she is a member of the protected class; (2) she applied and was qualified for the position; (3) she was not hired; and (4) the position was awarded to an equally or less qualified employee who was not a member of the protected class. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir.2000). Once a prima facie case is established, a presumption of unlawful discrimination is established. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). The burden then shifts to APAC to provide a legitimate, non-discriminatory reason for its hiring decision. Id. See also Chapman, 229 F.3d at 1024. If such a reason is articulated, the plaintiff then “has the opportunity to discredit the defendant’s proffered reasons for its decision.” Combs, 106 F.3d at 1528. In other words, Durley must provide sufficient evidence to raise a question of fact as to whether APAC’s proffered reason is pre-textual. Durley has established a prima facie case of employment discrimination, and APAC concedes that point. She is female, she applied for the position of Purchasing Agent, and Rapallo and Bair testified that she was qualified for the position of" }, { "docid": "10545116", "title": "", "text": "such, Mackey will have to resort to the McDonnell Douglas proof scheme to satisfy her burden. Since Mackey can only rely upon circumstantial evidence to prove that an illicit criterion motivated her employer to take the alleged adverse employment actions, its failure to promote, she must prove that (1) she is a member of a protected class; (2) her employer had an open position for which she applied or sought to apply; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Evans, 80 F.3d at 959; Carter v. Ball, 33 F.3d 450, 458 (4th Cir.1994). Once proven, an inference of discrimination is raised which Defendant may rebut with evidence of a legitimate, nondiscriminatory reason for its actions. Evans, 80 F.3d at 959; Carter, 33 F.3d at 459. If the Defendant succeeds,- the inference of discrimination drops from the case, id., and Mackey must then demonstrate that the reason advanced by Defendant is pre-textual and in fact motivated by discriminatory intent. Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 202 (4th Cir.1998). It is clear that Mackey satisfies the first element as a woman. As for the remaining elements, the facts are not as clear cut. With regard to the second element, when the position for Health Scientist Administrator was allegedly advertised, Mackey did not apply. Then when the second position, Program Director for Scientific Program Evaluation, was created, Mackey claims that it was not advertised. Taking these facts in the light most favorable to Mackey, it appears that she would not be able to establish that her employer had an open position for which she applied or sought to apply. However, “the burden of establishing a prima facie ease of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Thus, the Court will assume that had the second position been advertised, Mackey would have apphed. This brings the Court to the third" }, { "docid": "23528532", "title": "", "text": "framework governing Title VII eases is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To set forth a prima facie case of discrimination based upon a failure to promote, a plaintiff must show: (1) that he is a member of a protected class; (2) that he applied and was qualified for a promotion; (3) that he was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of the protected class received promotions. Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21 (6th Cir.2000). The Sixth Circuit has adapted this four-prong test to cases of reverse discrimination, where a member of the majority is claiming discrimination on the basis of race. In such cases, to satisfy the first prong of the prima facie case, the plaintiff must “demonstrate ‘background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir.2002) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985) (quoting Parker v. Baltimore and Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981))). To satisfy the fourth prong in such cases, the plaintiff must show that the defendant treated differently employees who were similarly situated but were not members of the protected class. Id Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). When the" }, { "docid": "14674169", "title": "", "text": "to work with management are indisputably now at a low point. (Paper No. 27, Exh. B-15). In January 1998, David George, a white male, was hired for the sales manager position. Mr. George had substantial experience in advertising in the television industry before being hired by Comcast and also held a B.A. degree. (Paper No. 27, Exh. B-19 at 14). 2. Analysis A plaintiff in a Title VII case may prove a prima facie case of discrimination through either direct or circumstantial evidence, or under the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas test applies to sex discrimination claims, including Nichols’ claim of reverse discrimination. Lucas v. Dole, 835 F.2d 532, 533-34 (4th Cir.1987) (reverse discrimination); Causey v. Balog, 929 F.Supp. 900, 909 (D.Md.1996), aff'd, 162 F.3d 795 (4th Cir.1998). To establish a prima facie case of disparate treatment based on a failure to promote under McDonnell Douglas, a plaintiff must prove a set of facts enabling the Court to conclude that it is more likely than not that the employer’s failure to promote the plaintiff was motivated by discrimination. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Plaintiff must show by a preponderance of the evidence that (1) he is a member of a protected class; (2) his employer had an open position for which he applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Id. at 959-960. “The burden of establishing a prima facie case of disparate treatment is not onerous.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If a plaintiff succeeds in proving a prima facie case, the employer has an opportunity to present a legitimate, non-discriminatory reason for its action. Evans, 80 F.3d at 959. If the employer does so, the presumption of unlawful discrimination created by the prima facie case “" }, { "docid": "6733303", "title": "", "text": "Plaintiff s’ Claims The burden of proof on a plaintiff in an employment discrimination case is the same for claims under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (applying the standard for Title VII claims to claims under § 1981); Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.1984) (holding that § 1981 and 8 1983 claims are reviewed under the same framework as Title VII claims). A plaintiff may satisfy that burden on summary judgment by offering direct evidence of an intent to discriminate, or indirect evidence pursuant to the three-part framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Direct evidence of discrimination is either direct evidence of a stated purpose to discriminate, or circumstantial evidence of sufficient probative force to raise a genuine issue of material fact. Evans, 80 F.3d at 959; Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.1988); cf. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 240, 242 (4th Cir.1982) (discussing the sufficiency of direct evidence of discrimination in the context of a directed verdict). The plaintiffs “own naked opinion, without more,” is not enough to establish a genuine issue of fact. Goldberg, 836 F.2d at 848; see also Evans, 80 F.3d at 959 (quoting Goldberg). Under the McDonnell Douglas framework, the burden is on the plaintiff initially to establish a prima facie case of discrimination by presenting some evidence showing a connection between his status as a member of a protected class and an adverse employment action. Autry v. North Carolina Dep’t of Human Resources, 820 F.2d 1384, 1385 (4th Cir.1987). Plaintiffs burden is “not onerous.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To establish a prima facie case of discriminatory compensation, a plaintiff must show that, as a member of a protected class, he" }, { "docid": "576218", "title": "", "text": "forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As a general matter, to make out a prima facie case for employment discrimination, the Plaintiff must show that: (1) he is a member of a protected group; (2) he earned satisfactory performance marks, (3) he suffered an adverse employment action; and (4) other similarly situated employees outside his protected class were treated more favor ably. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Carter v. Ball, 33 F.3d 450, 456 (4th Cir.1994), citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Cook v. CSX Transportation Corp., 988 F.2d 507, 511 (4th Cir.1993) citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Causey v. Balog, 162 F.3d 795 (4th Cir.1998). To the extent Plaintiff is asserting a disparate treatment theory for failure to promote, he must show: (1) the plaintiff is a member of a protected group; (2) plaintiff applied for the position; (3) plaintiff was qualified for the position; and (4) plaintiff was rejected for the position under circumstances giving rise to an inference of discrimination. See McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir.1991). If tile plaintiff can make out a prima facie case on his claims, the burden shifts to the defendant to come forward with a legitimate, nondiscriminatory reason for its actions. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). The burden then shifts back to the plaintiff to show that the defendant’s proffered reason is a mere pretext, to create an inference of unlawful discrimination. See O’Connor v. Consolidated Coin Caterers Corp., 84 F.3d 718, 719 (4th Cir.1995); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). The federal courts do not serve to second guess workplace decisions; thus, the claim cannot be based on mere disagreement with the employment decision. See DeJarnette v. Corning, Inc., 133" }, { "docid": "14674170", "title": "", "text": "Court to conclude that it is more likely than not that the employer’s failure to promote the plaintiff was motivated by discrimination. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Plaintiff must show by a preponderance of the evidence that (1) he is a member of a protected class; (2) his employer had an open position for which he applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Id. at 959-960. “The burden of establishing a prima facie case of disparate treatment is not onerous.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If a plaintiff succeeds in proving a prima facie case, the employer has an opportunity to present a legitimate, non-discriminatory reason for its action. Evans, 80 F.3d at 959. If the employer does so, the presumption of unlawful discrimination created by the prima facie case “ ‘drops out of the picture’ ” and the burden shifts back to the employee to show that the given reason was just a pretext for discrimination. Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). The plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against him. Texas Dep’t of Community Affairs, 450 U.S. at 253, 101 S.Ct. 1089. For the reasons stated below, the Court concludes that Comcast is entitled to summary judgment on the “failure to promote” claim articulated by Nichols because he fails to establish a prima facie case of sex discrimination. Even if the Court were to conclude that Nichols met his burden of establishing a prima facie case, Comcast has articulated legitimate, nondiscriminatory reasons for its failure to promote Nichols, which reasons Nichols cannot prove are pretextual so as to avoid summary judgment. The first two elements of a prima facie case, that Nichols is a member of a protected class as a white male and" }, { "docid": "23484151", "title": "", "text": "absence of direct evidence of discrimination is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference of discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see Neuman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001) (stating that to establish a prima facie case, a Title VII plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the job; (3) that he suffered an adverse employment decision; and (4) that the job was given to a person outside his protected class). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). When the burden shifts back to the plaintiff, although he must come forward with evidence that the company’s reason for the employment action is false, he need not present independent evidence that the proffered reason is pretext for racial discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”). Here, there is no dispute that Hopson has set forth a prima facie case. Nor do the parties dispute that DaimlerChrysler has presented a legitimate, non-discriminatory reason for its employment decisions. Hopson’s chief complaint on appeal is that the district court erred in ruling that Hop-son failed to raise an issue of fact' with respect" }, { "docid": "23139301", "title": "", "text": "that all minority applicants were fairly considered. Given the differing inferences that may be drawn from these statements, we conclude that the district court did not err in ruling that Schoenfeld had not presented any direct evidence of discrimination. B. Circumstantial Evidence When a plaintiff attempts to prove intentional discrimination in violation of Title VII using circumstantial evidence, we apply the now familiar shifting burden 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), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Eskra v. Provident Life and Acc. Ins. Co., 125 F.3d 1406, 1411 (11th Cir.1997). If he meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir.1989). The burden then shifts to the employer to “articulate” a legitimate, non-discriminatory reason for its action. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95. If the employer successfully articulates such a reason, then the burden shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful discrimination. Id. at 255-56, 101 S.Ct. at 1095-96. 1. Prima Facie Case In a traditional failure-to-hire case, the plaintiff establishes a prima facie case by showing that: (1) he was a member of a protected class; (2) he applied and was qualified for a position for which the defendant was accepting applications; (3) despite his qualifications, he was not hired; and (4) after his rejection the position remained open or was filled by a person outside his protected class. Welbom v. Reynolds Metals Co., 810 F.2d 1026, 1028 (11th Cir.1987) (per curiam). Schoenfeld’s complaint alleges that he was discriminated against both on the basis of his race and on the basis of his gender. The" }, { "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": "14211434", "title": "", "text": "making the employment deeision(s) which gave rise to the suit. Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.1994) (citing EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1570 (11th Cir.1993)). While direct proof of discriminatory intent may be preferred, it is not a sine qua non. Teamsters, 431 U.S. at 334-40, 97 S.Ct. at 1853-57. In cases of alleged discrimination not supported by direct proof, such as the present action, but rather by circumstantial evidence, the plaintiff-employee must first demonstrate a prima facie case of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the McDonnell Douglas and Burdine framework, the- plaintiff must first raise an inference of discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). To satisfy this burden in a failure-to-promote case, the plaintiff must show: (1) that he or she belongs to a protected class; (2) that he or she applied for and was qualified for the position for which the employer was seeking applicants; (3) that he or she was denied the promotion; and (4) that an another equally or less qualified individual outside the protected class received the promotion. Batey, 24 F.3d at 1334 n. 11 (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 156 (1989)). The plaintiff also may establish the fourth element of the prima facie case by showing that the position remained open. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068, 1073 (11th Cir.1995). In alleging sex discrimination, Ms. White is within a protected group as defined by Title VII. Regarding the second element of the McDonnell Douglas standard, Ms. White does not assert that she specifically expressed an interest in the promotion, rather she states “I learned of the opening for the position of Lieutenant Site Supervisor on October 4, 1993, the day that Lieutenant" }, { "docid": "21106814", "title": "", "text": "III. Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee because of that employee’s national origin. 42 U.S.C. § 2000e-2(a). The purpose of Title VII is to assure equal employment opportunities and to eliminate discriminatory employment practices which have harmed minority citizens. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the Supreme Court set forth a three-step proof scheme under which a plaintiff may prove a Title VII violation. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Under the McDonnell Douglas scheme, in order to recover under Title VII, a plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Evans, 80 F.3d at 959 (4th Cir.1996). If a plaintiff does so, the burden then shifts to the defendant to produce and articulate some legitimate, nondiscriminatory reason for taking the allegedly discriminatory action. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Evans, 80 F.3d at 959 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). If the defendant meets this burden, the presumption of unlawful discrimination created by the prima facie case is eliminated, and the plaintiff must then prove by a preponderance of the evidence that the employer’s articulated reason is not true and is a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Evans, 80 F.3d at-959. In regards to this final element of the scheme, a plaintiff must prove that the real reason for the conduct is discrimination. Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 201-03 (4th Cir.1998) (citing St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742). The plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against him. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Evans, 80 F.3d at 959. Alizai claims that because of his national origin," }, { "docid": "23164432", "title": "", "text": "Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. B. The McDonnell Douglas Framework The Court analyzes Lester’s discrimination and retaliation claims based on race pursuant to the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, a plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. Id. at 802, 93 S.Ct. 1817; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to make out a prima facie case of discriminatory failure to promote, for example, a plaintiff must show that he is a member of a protected class; that he applied and was qualified for the promotion at issue; that despite his qualification, he was rejected; and that, after his rejection, the position remained open and the employer continued to seek applicants who were no more qualified than plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The prima facie case requirement was recently articulated by this Circuit as follows: “a plaintiff [must] state a prima facie claim of discrimination by establishing that: ‘(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.’ ” Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002) (quoting" }, { "docid": "2291129", "title": "", "text": "directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Gallo v. Prudential Residential Servs., Ltd., 22 F.3d at 1224. B. The McDonnell Douglas Standard In order to establish a prima facie case of discrimination based on race, a plaintiff must satisfy the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (“McDonnell Douglas ”) Under this standard, the plaintiff must establish that (1) he belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he was rejected despite his qualifications; and (4) after this rejection, the position was filled by someone outside the protected class or the employer continued to seek applications for the position. Id. at 802, 93 S.Ct. at 1824; see also Patterson v. McLean Credit Union, 491 U.S. at 186-87, 109 S.Ct. at 2378, 105 L.Ed.2d 132 (1989). The burden of establishing a prima facie case “is not onerous.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 2378, 67 L.Ed.2d 207 (1981). Once the plaintiff establishes a prima facie case, an inference of employment discrimination arises, id. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d 207 (1981); see also Patterson v. McLean Credit Union, 491 U.S. at 187, 109 S.Ct. at 2378, and the burden shifts to the defendants to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected for legitimate, nondiscriminatory reasons. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824; Texas Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In order for defendants to satisfy their burden, it is sufficient if their evidence raises a genuine issue of fact as to whether they discriminated against the plaintiff. Texas Community Affairs v. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094. “To accomplish this, the defendants] must clearly set forth, through the" }, { "docid": "2561190", "title": "", "text": "claim is an allegation of disparate treatment on the basis of pregnancy. Mentch may prove her disparate treatment claim either through direct or circumstantial evidence. Nilson v. Historic Inns Group, 903 F.Supp. 905, 907 (D.Md.1995)(pregnancy discrimination claim); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1314 (4th Cir.1993)(age discrimination claim). Mentch has attempted to establish her case under the familiar three-part scheme of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, Mentch must present evidence sufficient to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. at 1824; see also Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Mitchell, 12 F.3d at 1315. In this Circuit, a plaintiff may establish a prima facie claim of discriminatory non-promotion by proving by a preponderance of the evidence that 1. [s]he is a member of a protected group; 2. [s]he applied for the position in question; 3. [s]he was qualified for the position; and 4. [s]he was rejected for the position in favor of someone not a member of the protected group, under circumstances giving rise to an inference of unlawful discrimination. Alvarado v. Board of Trustees, 928 F.2d 118, 121 (4th Cir.1991)(adopting the district court’s modified McDonnell Douglas test); see also Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989). If plaintiff establishes a prima facie ease, then at the second step of the McDonnell Douglas proof scheme, ESB must undermine the inference of discrimination arising from the establishment of a prima facie case. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. That is, ESB must produce evidence of its legitimate, nondiscriminatory reasons for the non-promotion. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; Alvarado, 928 F.2d at 121-22. While ESB “need not persuade the court that it was actually motivated by the proffered reasons,” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, ESB must" } ]

[ { "docid": "22189773", "title": "", "text": "or to “sound in fraud,” and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b). Vess, 317 F.3d at 1103-04; see also In re Stac, 89 F.3d at 1404-05 (“We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 [of the 1933 Securities Act] when, as here, they are grounded in fraud.”). In a case where fraud is not an essential element of a claim, only allegations of fraudulent conduct must satisfy the heightened pleading requirements of Rule 9(b). Vess, 317 F.3d at 1105. “Allegations of non-fraudulent conduct need satisfy only the ordinary notice pleading standards of Rule 8(a).” Id. As the Fifth Circuit wrote: Where averments of fraud are made in a claim in which fraud is not an element, an inadequate averment of fraud does not mean that no claim has been stated. The proper route is to disregard aver-ments of fraud not meeting Rule 9(b)’s standard and then ask whether a claim has been stated. Id. (citing Lone Star Ladies Inv. Club v. Schlotzsky’s Inc., 238 F.3d 363, 368 (5th Cir.2001) (“Lone Star\")) (emphasis added in Vess). As the Eighth Circuit elaborated: The only consequence of a holding that Rule 9(b) is violated with respect to a § 11 claim would be that any allegations of fraud would be stripped from the claim. The allegations of innocent or negligent misrepresentation, which are at the heart of a § 11 claim, would survive. ' Id. (citing Carlon v. Thaman (In re NationsMart Corp. Sec. Litig.), 130 F.3d 309, 315 (8th Cir.1997)) (emphasis added in Vess). “Thus, if particular averments of fraud are insufficiently pled under Rule 9(b), a district court should ‘disregard’ those averments or ‘strip’ them from the claim. The court should then examine the allegations that remain to determine whether they state a claim.” Id. A district court need not rewrite a deficient complaint however. Lone Star, 238 F.3d at 368. Rule 9(b) may prove fatal to 1933 Securities Act claims “grounded in fraud” when the complaint makes a “wholesale adoption” of" } ]

[ { "docid": "23406038", "title": "", "text": "holding that Rule 9(b) does not apply to Section 11 or Section 12(a)(2) claims that are expressly pled in negligence even when Section 10(b) claims against some of the same defendants are pled separately in the same complaint, we adopt a position that is consistent with our holdings in Shapiro and CALPERS, and one that has already been adopted by a number of district courts within our circuit. See, e.g., In re Ravisent Tech., Inc. Sec. Litig., No. CIV.A. 00-CV-1014, 2004 WL 1563024, at *13 (E.D.Pa. July 13, 2004) (“It appears that Plaintiffs’ counsel were aware of Shapiro when drafting the complaint, and were careful to plead negligence sufficiently to avoid the heightened pleading requirements.”); In re Cendant Corp. Litig., 60 F.Supp.2d 354, 364 (D.N.J.1999) .(“Unlike the complaint in Shapiro, this complaint does not incorporate allegations of scienter and fraud into the § 11 claim. Rather, here the § 11 claim is [pled] before any of the other claims. Although the plaintiffs have [pled] that certain defendants acted fraudulently in violation of § 10(b), the § 11 claim is limited to negligence.”); Resolution Trust Corp. v. del Re Castellett, No. CIV.A.92-4635(AMW), 1993 WL 719764, at *2 (D.N.J. Sept. 7, 1993) (holding that Rule 9(b) did not apply to plaintiffs Section 11 count because that count sounded in negligence and did not incorporate allegations of fraud from a Section 10(b) count). In short, the reputational concerns that animate Rule 9(b) with respect to a defendant accused of fraud are not implicated when a defendant stands accused of nothing more than negligence. Cf. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (discussing the limited applicability of Rule 9(b)). Because the Section 11 and Section 12(a)(2) claims of the plaintiffs here were expressly negligence-based and pled distinctly in the complaint from the fraud-based claims, it was error for the District Court to hold that they sound in fraud. Accordingly, we will vacate the dismissal of these claims. B. Section 10(b) Claims Section 10(b) of the Exchange Act prohibits the ‘“use or" }, { "docid": "19385079", "title": "", "text": "Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (“if plaintiffs have plead fraud [under Section 11], they must comply with the requirements of Rule 9(b)”); Geiger v. Solomon-Page Group, Ltd., 933 F.Supp. 1180, 1189 (S.D.N.Y.1996) (applying Rule 9(b) \"[w]here the allegations underlying claims under the Securities Act are ... based in fraud”); In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1404-5 (9th Cir.1996) (\"We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 when ... they are grounded in fraud.”), cert. denied sub nom., Anderson v. Clow, 520 U.S. 1103, 117 S.Ct. 1105, 137 L.Ed.2d 308 (1997); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (\"When 1933, Securities Act claims are grounded in fraud rather than negligence ... Rule 9(b) applies.”); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3rd Cir.1992) (affirming district court’s ruling that 9(b) applies to Section 11 claims sounding in fraud), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992). But see In re In-Store Advertising Securities Litigation, 878 F.Supp. 645 (S.D.N.Y. 1995) (“[BJecause proof of fraud is not necessary to prevail on a Section 11 claim ... Rule 9(b) does not apply to a section 11 claim.”); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (same); In re NationsMart Corp. Securities Litig., 130 F.3d 309, 314 (8th Cir.1997) (\"[T]he particularity requirement of Rule 9(b) does not apply to claims under Section 11 of the Securities Act....”). The plaintiffs' allegation that N2K knew of, but purposely withheld, its first quarter 1998 results is, on its face, based in fraud. That being said, I suspect the level of particularity stated in the plaintiffs’ amended complaint is insufficient to survive a thorough analysis under the Rule, and the plaintiffs’ complaint would properly be dismissed on this ground as well." }, { "docid": "23632728", "title": "", "text": "intentionally issued this conclusion knowing of its falsity. . Paragraph 166 of the Second Amended Complaint states: “Plaintiffs incorporate ¶¶ 1-161. Plaintiffs expressly disclaim any allegations of fraud, knowledge, intent, or scienter.” . Other Courts of Appeals to consider the issue both pre and post passage of the PSLRA have also concluded that Rule 9(b) applies to section 11 claims sounding in fraud. See, e.g., Rombach v. Chang, 355 F.3d 164, 171 (2d Cir.2004) (\"We hold that the heightened pleading standard of Rule 9(b) applies to Section 11 and Section 12(a)(2) claims insofar as the claims are premised on allegations of fraud.”); Lone Star Ladies Inv. Club v. Schlotzsky's, Inc., 238 F.3d 363, 368 (5th Cir.2001) (approving district court’s reliance on Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) for proposition that Rule 9(b) is applicable to 1933 Securities Act claims that are grounded in fraud); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404 (9th Cir.1996) (\"We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under section 11 when, ... they are grounded in fraud.”); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (plaintiffs \"fail[ed] to satisfy this 9(b) standard” applicable to their Securities Act claims sounding in fraud where \"their complaint [was] bereft of any [particularity]\"); accord Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997) (\"[a]ssuming without deciding” that the approach set out by the Third Circuit in Shapiro applies, and holding that \"the § 11 claim in the case at bar ... does not trigger Rule 9(b) scrutiny” because “it is not premised on fraud.”); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (dictum) (\"[I]f a plaintiff were to attempt to establish violations of Sections 11 and 12[a](2) as well as the anti-fraud provisions of the Exchange Act though allegations in a single complaint or a unified course of fraudulent conduct ... the particularity requirements of Rule 9(b) would probably apply to the Sections 11, 12[a](2), and Rule 10b-5 claims alike.”). But see In re NationsMart Corp. Sec. Litig., 130 F.3d" }, { "docid": "23406035", "title": "", "text": "where, as here, individual defendants are accused in separate claims of the same complaint of having violated Section 11, Section 12(a)(2), and Section 10(b), the Securities Act claims do not sound in fraud if ordinary negligence is expressly pled in connection with those claims. In such a case, the fraud allegations cannot be said to “con taminate” the Section 11 and Section 12(a)(2) claims if the allegations are pled separately. We applied Rule 9(b) to the Section 11 and Section 12(a)(2) claims in Shapiro because “plaintiffs did not allege ordinary negligence” and we could “see no way to construct a negligence cause of action.” Shapiro, 964 F.2d at 288. Here, ordinary negligence is alleged in the Section 11 and Section 12(a)(2) claims, and those claims are pled separately from the Section 10(b) fraud claims against the same defendants. That is enough to avoid triggering Rule 9(b). A contrary result would effectively preclude plaintiffs from filing suit under Section 11 and Section 12(a)(2) as well as Section 10(b)(5). There is no suggestion that Congress intended such an incongruous approach. To be sure, the “sounds in fraud” determination for Securities Act claims will not always be clear cut in cases where the plaintiff simultaneously raises claims against the same defendants under a provision that requires a showing of scienter, like Section 10(b). But where the plaintiff has exercised care in differentiating asserted negligence claims from fraud claims and in delineating the allegations that support the negligence cause of action as distinct from the fraud, the determination is straightforward. Lead Class Plaintiff carefully segregated its allegations of negligence against the Officers and BDO from its allegations of fraud against those defendants. It did so by pleading its Section 11 and Section 12(a)(2) claims in negligence before — and wholly apart from — pleading its fraud-based Section 10(b) claims. This manner of pleading makes for a clear conceptual separation in the complaint between claims sounding in negligence and those sounding in fraud. And while Lead Class Plaintiff prefaced its complaint with a general statement that its suit “arises out of the massive fraud that" }, { "docid": "6757950", "title": "", "text": "plaintiff's complaint does not allege that [defendant] made any representations to plaintiff, plaintiff represents in his motion that he can [so] allege.... Thus, the Court cannot conclude as a matter of law that plaintiff cannot possibly recover against [defendant].”). . Poulos, 959 F.2d at 74. . The elements of negligent misrepresentation are (1) a misrepresentation or omission of a material fact; (2) failure to exercise reasonable care on the part of the defendant; (3) reasonable reliance on the misrepresentation or omission; and (4) damages as a direct result of such reasonable reliance. Levens v. Campbell, 733 So.2d 753, 760-61 (Miss.1999). . Courts often have applied this theory in the context of claims pled under Sections 11 and 12(a)(2) of the Securities Act of 1933, 15 U.S.C. §§ 77k(l), 771(a)(2). See, e.g., In re Ultrafem Inc. Securities Litigation, 91 F.Supp.2d 678, 690 (S.D.N.Y.2000) (Rule 9(b) applicable where complaint made \"classic fraud allegations ... of misrepresentations and omissions made with intent to defraud”); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (\"it seems only fair that if plaintiffs have pled fraud, they must comply with the requirements of 9(b)”) (citing Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d. Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990)). The reasoning of these and similar cases is persuasive here. . Hill Cpt. ¶¶ 22-24. All six Mississippi complaints contain identical allegations. . Arnona v. Smith, 749 So.2d 63, 67 (Miss.1999). . Hill Cpt. ¶¶ 22-28. . See Amona, 749 So.2d at 67 (upholding dismissal of complaint alleging misrepresentation made to plaintiffs’ purchasers, rather than plaintiffs). . Miss. Code Ann. § 75-2-314. The Mississippi Products Liability Act (\"MPLA”) created an additional cause of action in tort for a breach of express warranty, see miss. Code Ann. § 11-1-63, but it did not preclude breach of implied warranty claims under the Mississippi UCC in products liability actions. See Childs v. General Motors Corp., 73 F.Supp.2d 669, 672 (N.D.Miss.1999)." }, { "docid": "14794930", "title": "", "text": "The Second Circuit has not spoken on the question of whether 9(b)’s heightened standards are applicable to actions brought pursuant to §§ 11 or 12(a)(2) of the Securities Act, and courts in the Southern District are divided on the question. See, e.g., In re N2K Inc. Sec. Litig., 82 F.Supp.2d 204, 209 n. 10 (S.D.N.Y.2000) (9(b) applies); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (same); Geiger v. Solomon-Page Group, Ltd., 938 F.Supp. 1180, 1189 (S.D.N.Y.1996) (same); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645 (S.D.N.Y.1995) (9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242 (S.D.N.Y. 1994) (same). Even the courts which have held that 9(b) can be applicable, however, have so held in cases where there were actual allegations of fraud in the complaint. See, e.g., Schoenhaut, 986 F.Supp. at 795 (“Plaintiffs ... have alleged fraudulent intent.”). Fraud is certainly not a necessary element of a claim brought pursuant to § 11 or § 12(a)(2), in contrast to a claim brought pursuant to, for example, Rule 10b-5. Here, Plaintiff has carefully avoided making allegations of fraud. Defendants maintain that the Complaint is, nevertheless, “grounded in fraud”, and that, in any event, such artful pleading should not permit Plaintiff to escape the requirements of 9(b). Nonetheless, the Complaint is sufficient. To illustrate why, it is helpful to compare Shapiro v. UJB Financial Corp., 964 F.2d 272 (3d Cir.1992) with In re Chambers Development Sec. Litig., 848 F.Supp. 602 (W.D.Pa.1994). In Shapiro, the section of the complaint alleging violations of § 12(2) of the Securities Act explicitly incorporated allegations from earlier sections of the complaint stating that the defendants “employed devices, schemes, and artifices to defraud.” Shapiro, 964 F.2d at 276 n. 6, 287. Moreover, the § 12(2) allegations did not allege negligence. See id. at 287. The Shapiro court could “see no way to construct a negligence cause of action here.” Id. at 288. By contrast, in Chambers, the plaintiffs “selectively parsed their complaint to indicate that their § 11 and § 12(2) claims ... are based upon negligence in connection with the Registration Statements and" }, { "docid": "22356007", "title": "", "text": "fraud claims brought under Section 10(b) and Rule 10b-5. See Ganino, 228 F.3d at 168. The district court concluded that the same heightened pleading standard applies to securities claims brought under Section 11 and Section 12(a)(2) when premised on averments of fraud. We agree. In deciding this issue, several circuits have distinguished between allegations of fraud and allegations of negligence, applying Rule 9(b) only to claims pleaded under Section 11 and Section 12(a)(2) that sound in fraud. See Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir.1992) (“[W]hen § 11 and § 12[ (a) ](2) claims are grounded in fraud rather than negligence, Rule 9(b) applies.”); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (Rule 9(b) applies when “Securities Act claims are grounded in fraud rather than negligence”); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (plaintiffs “fail[ed] to satisfy this 9(b) standard” applied to their Securities Act claims sounding in fraud where “their complaint [was] bereft of any detail concerning who was involved in each allegedly fraudulent activity, how the alleged fraud was perpetrated, or when the allegedly fraudulent statements were made”); In re Stac Elecs. Secs. Litig., 89 F.3d 1399, 1404-05 (9th Cir.1996) (“[T]he particularity requirements of Rule 9(b) apply to claims brought under Section 11 when, as here, they are grounded in fraud.”). There is dicta in two other circuits along the same lines. The Eighth Circuit, however, has categorically held that “the particularity requirement of Rule 9(b) does not apply to claims under § 11 of the Securities Act, because proof of fraud or mistake is not a prerequisite to establishing liability under § 11.” In re NationsMart Corp. Secs. Litig., 130 F.3d 309, 314 (8th Cir.1997). The court reasoned that “a pleading standard which requires a party to plead particular facts to support a cause of action that does not include fraud or mistake as an element comports neither with Supreme Court precedent nor with the liberal system of ‘notice pleading’ embodied in [Fed.R.Civ.P. 8(b)].” Id. at 315. In this Circuit, the several district courts that have considered this" }, { "docid": "22356006", "title": "", "text": "under Section 10(b)). Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). This Court has read Rule. 9(b) to require that a complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993). Similarly, the PSLRA, which applies in this respect only to claims brought under the Exchange Act, requires that any securities fraud complaint alleging misleading statements or omission of material fact must “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l). As the district court observed, the particularity requirement of Rule 9(b) applies to securities fraud claims brought under Section 10(b) and Rule 10b-5. See Ganino, 228 F.3d at 168. The district court concluded that the same heightened pleading standard applies to securities claims brought under Section 11 and Section 12(a)(2) when premised on averments of fraud. We agree. In deciding this issue, several circuits have distinguished between allegations of fraud and allegations of negligence, applying Rule 9(b) only to claims pleaded under Section 11 and Section 12(a)(2) that sound in fraud. See Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir.1992) (“[W]hen § 11 and § 12[ (a) ](2) claims are grounded in fraud rather than negligence, Rule 9(b) applies.”); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (Rule 9(b) applies when “Securities Act claims are grounded in fraud rather than negligence”); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (plaintiffs “fail[ed] to satisfy this 9(b) standard” applied to their Securities Act claims sounding in fraud where “their complaint [was] bereft of any detail concerning who was involved in each allegedly fraudulent activity," }, { "docid": "23406037", "title": "", "text": "was perpetrated at Suprema,” App. at 82, it was careful in that introductory discussion not to accuse any particular defendant of acting with fraudulent intent. As to its claims against the Outside Directors and Underwriters in particular, there are no allegations of fraud or reckless misconduct whatsoever in any count of Lead Class Plaintiffs second amended complaint; ordinary negligence is all that is pled. SSF Plaintiffs were less artful in their pleading, with the result that allegations of negligence and allegations of fraud against the defendants are somewhat commingled in the second amended complaint. Although we view this lapse in pleading as inexpert, we do not regard it as fatal under the circumstances. The Section 11 and Section 12(a)(2) claims were expressly pled in, and limited to, negligence, with preceding allegations of fraud expressly disavowed in the context of those claims. While not as “clean” as the pleading style adopted by Lead Class Plaintiff, the SSF Plaintiffs’ allegations as set forth were sufficient to give notice to the defendants of the claims against them. In holding that Rule 9(b) does not apply to Section 11 or Section 12(a)(2) claims that are expressly pled in negligence even when Section 10(b) claims against some of the same defendants are pled separately in the same complaint, we adopt a position that is consistent with our holdings in Shapiro and CALPERS, and one that has already been adopted by a number of district courts within our circuit. See, e.g., In re Ravisent Tech., Inc. Sec. Litig., No. CIV.A. 00-CV-1014, 2004 WL 1563024, at *13 (E.D.Pa. July 13, 2004) (“It appears that Plaintiffs’ counsel were aware of Shapiro when drafting the complaint, and were careful to plead negligence sufficiently to avoid the heightened pleading requirements.”); In re Cendant Corp. Litig., 60 F.Supp.2d 354, 364 (D.N.J.1999) .(“Unlike the complaint in Shapiro, this complaint does not incorporate allegations of scienter and fraud into the § 11 claim. Rather, here the § 11 claim is [pled] before any of the other claims. Although the plaintiffs have [pled] that certain defendants acted fraudulently in violation of § 10(b), the" }, { "docid": "23406032", "title": "", "text": "part. For their part, defendants principally rely upon our decision in CALPERS, where we held that the heightened pleading of Rule 9(b) applied to a Section 11 claim despite the plaintiffs’ express disavowal of fraud because “the claims [were] indisputably immersed in unparticularized allegations of fraud,” and “a core theory of fraud permeate[d] the entire Second Amended Complaint.” CALPERS, 394 F.3d at 160. We concluded that “[t]he one-sentence disavowment of fraud contained within Plaintiffs’ section 11 Count ... does not require us to infer that the claims are strict liability or negligence claims, and in this case is insufficient to divorce the claims from their fraudulent underpinnings.” Id. Although defendants are correct to observe that this case resembles CALPERS inasmuch as a core theory of fraud permeates the action, we find this case easily distinguishable from CALPERS with respect to the manner in which plaintiffs have pled their Section 11 and Section 12(a)(2) claims. Unlike the plaintiffs in CALPERS, plaintiffs in this case do not merely disavow already-pled allegations of fraud in connection with their Section 11 and Section 12(a)(2) claims, leaving the court to “sift through [those] allegations ... in search of some ‘lesser included’ claim of strict liability.” CALPERS, 394 F.3d at 162 (quoting Lone Star Ladies Inv. Club v. Schlotzsky’s, Inc., 238 F.3d 363 (5th Cir.2001)). Rather, both plaintiffs have expressly pled negligence in connection with their Section 11 and 12(a)(2) claims. We regard this difference in pleading as dispositive. In CALPERS, we subjected the plaintiffs pleading to the strictures of Rule 9(b) because the complaint was “completely devoid of any allegations that Defendants acted negligently.” CALPERS, 394 F.3d at 161. Similarly, in Shapiro, we held that Rule 9(b) applied to Section 11 and Section 12(a)(2) claims because there was “not a hint in the allegations that defendants were negligent in violating §§ 11 and 12[ (a) ](2).” Shapiro, 964 F.2d at 287-88. Both CALPERS and Shapiro thus presented complaints containing allegations of fraud exclusively; no allegations of negligence were pled in support of the Securities Act claims. See, e.g., Shapiro, 964 F.2d at 288 (“[W]e are" }, { "docid": "23568279", "title": "", "text": "require scienter for liability.”). . The Fifth Circuit’s alleged holding that the sound in fraud doctrine requires that Section 11 claims be pled with particularity rests on the following footnote: \"When 1933 Securities Act claims are grounded in fraud rather than negligence as they clearly are here, Rule 9(b) applies.” Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994). This doctrine has now been somewhat modified by the Circuit’s holding in Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.3d 363, 369 (5th Cir.2001) (Higginbotham, J.) (holding that because a complaint \"expressly do[es] not assert that defendants are liable for fraudulent or intentional conduct and disavow[s] and disclaim[s] any allegation of fraud” under Section 11, \"[t]hose claims do not .'sound in fraud’ and cannot be dismissed for failure to satisfy Rule 9(b)”) (alteration in original). . In Shapiro v. UJB Fin. Corp., 964 F.2d 272, 287 (3d Cir.1992), the court stated: \"The district court held that the § 11 and § 12(2) allegations in Count II 'sounded in fraud' and lliat Rule 9(b) applies. We agree.” More recently, however, the Third Circuit declared that it was error for the district court to impose a heightened pleading burden on a Securities Act claim \"[ajbsent a determination that plaintiffs' claims sounded in fraud, or some analysis explaining why Rule 9(b) should apply when a section 12(2) claim does not sound in fraud.” In re Westinghou.se Sec. Litig., 90 F.3d 696, 717 n. 20 (3d Cir. 1996). The court then noted that its previous decision in UJB Financial Corporation had also stated: \"By its plain wording, Rule 9(b) would not appear to apply to claims that a defendant negligently violated §§11 and 12(2); we need not and do not decide this issue.” Id. (emphasis added). The Westinghouse court further cited with approval two district court cases in which the district court refused to apply Rule 9(b) to the claim because Plaintiffs had not pled fraud in connection with their Securities Act claim. See id. (citing In re Chambers Dev. Sec. Litig., 848 F.Supp. 602, 624 (W.D.Pa.1994)). . See also Brian" }, { "docid": "22838788", "title": "", "text": "Anderson’s claims must nevertheless fail if, as the district court found, Anderson failed to plead the underlying fraud with particularity. [See ER 80 at 16-31, 39, 45.] Anderson disputes the applicability of Rule 9(b) to its Section 11 claims. The district court considered plaintiffs’ Sections 11 and 10(b) claims separately, dismissing the former under Rule 12(b)(6) and the latter under Rule 9(b), though it applied similar standards and reasoning to each. We recently affirmed a district court’s dismissal of 1933 and 1934 Act claims, including Section 11 claims, for failure to satisfy Fed.R.Civ.P. 9(b). In re GlenFed, Inc. Sec. Litig., 60 F.3d 591, 592 (9th Cir.1995) (“GlenFed III”) (on remand from en banc decision, 42 F.3d 1541 (9th Cir.1994)). We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 when, as here, they are grounded in fraud. See Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (holding Rule 9(b) applies to 1933 Securities Act claims when they are grounded in fraud rather than negligence, and applying the rule to §§ 11 and 12(2) claims); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir.) (observing that “the plain language [of Rule 9(b) ] clearly encompasses § 11 and § 12(2) claims based on fraud,” but reserving judgment on the issue of whether the rule applies to claims that a defendant negligently violated these sections), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Sears v. Likens, 912 F.2d 889, 892-93 (7th Cir.1990) (applying Rule 9(b) to 1933 Securities Act claims sounding in fraud). Rule 9(b) serves to give defendants adequate notice to allow them to defend against the charge and to deter the filing of complaints “as a pretext for the discovery of unknown wrongs,” to protect professionals from the harm that comes from being subject to fraud charges, and to “prohibit [ ] plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). Because the same" }, { "docid": "23406034", "title": "", "text": "not presented with a mixture of allegations of negligence [and] fraud.”) (citation and quotation marks omitted). We observed in Shapiro that “[i]t would be unreasonable to infer a negligence cause of action from [nothing more than a] fleeting and obscure reference [in the complaint] to ‘gross negligence.’ ” Id. at 288 n. 18. Other courts of appeals presented with Section 11 or 12(a)(2) claims premised exclusively on allegations of fraud have followed our approach in Shapiro and declined to infer negligence where it has not been expressly pled. See, e.g., In re Daou Sys., 411 F.3d 1006, 1028 (9th Cir.2005); Rombach, 355 F.3d at 172; Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994). Conversely, where the claims are expressly premised on negligence rather than fraud, Rule 9(b) has been held inapplicable. See Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1251-52 (10th Cir.1997) (assuming arguendo that the approach in Shapiro is correct and holding that Section 11 claim not premised on fraud did not trigger Rule 9(b) scrutiny). We now hold that where, as here, individual defendants are accused in separate claims of the same complaint of having violated Section 11, Section 12(a)(2), and Section 10(b), the Securities Act claims do not sound in fraud if ordinary negligence is expressly pled in connection with those claims. In such a case, the fraud allegations cannot be said to “con taminate” the Section 11 and Section 12(a)(2) claims if the allegations are pled separately. We applied Rule 9(b) to the Section 11 and Section 12(a)(2) claims in Shapiro because “plaintiffs did not allege ordinary negligence” and we could “see no way to construct a negligence cause of action.” Shapiro, 964 F.2d at 288. Here, ordinary negligence is alleged in the Section 11 and Section 12(a)(2) claims, and those claims are pled separately from the Section 10(b) fraud claims against the same defendants. That is enough to avoid triggering Rule 9(b). A contrary result would effectively preclude plaintiffs from filing suit under Section 11 and Section 12(a)(2) as well as Section 10(b)(5). There is no suggestion that Congress intended such" }, { "docid": "23449984", "title": "", "text": "article, which it quotes. (Complaint ¶ 70.) The Complaint quotes various statements which announced or discussed the termination of the Perrier Agreement (Complaint ¶¶ 75-76), including statements taken from a Celestial press release (Complaint ¶ 71); a Paine-Webber report (Complaint ¶ 72) and internal wire to brokers (Complaint ¶ 73); statements by individual stock market analysts (Complaint ¶ 74); Celestial’s August 9, 1994 Form 10-Q (Complaint ¶75), December 22, 1994 Form 10-K (Complaint ¶ 77), and 1994 Annual Report to Shareholders (Complaint ¶¶ 78-79); and a joint Celestial-Perrier press release (Complaint ¶ 76). IV. ANALYSIS We review each of the issues in this case de novo, confine our analysis to the text of the Complaint, and accept as true the pleaded facts. See Barrett v. Tallon, 30 F.3d 1296, 1299 (10th Cir.1994); Seattle-First Nat’l Bank v. Carlstedt, 800 F.2d 1008, 1011 (10th Cir.1986) (treating dismissal under Fed.R.Civ.P. 9(b) as dismissal under Fed. R.Civ.P. 12(b)(6)). A. Section 11 Claim When alleging a violation of § 11, a plaintiff who “purchased a security issued pursuant to a registration statement ... need only show a material misstatement or omission to establish [a] prima facie case. Liability against the issuer of a security is virtually absolute, even for innocent misstatements.” Herman & MacLean v. Huddleston, 459 U.S. 375, 382, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983) (footnote omitted). Thus, the plaintiff here was not required to have pleaded fraud in connection with the § 11 claim. Defendants argue, however, that the § 11 claim is premised on fraud, thereby triggering Rule 9(b)’s particularity requirements, even though a § 11 claim may be pleaded without alleging fraud. In support thereof, defendants cite the Third Circuit case, Shapiro v. UJB Financial Corp., 964 F.2d 272, 287-89 (3d Cir.1992). In Shapiro, the court rejected plaintiffs’ argument that their § 11 claim was based on negligence because the complaint was “devoid of allegations that de fendants acted negligently in violating [§ ] 11,” and because the count containing the § 11 claim “did not allege ordinary negligence.” Id. at 288. Assuming without deciding that this court adopts" }, { "docid": "5556920", "title": "", "text": "any such allegation would be mere surplusage. The only consequence of a holding that Rule 9(b) is violated with respect to a § 11 claim would be that any allegations of fraud would be stripped from the claim. The allegations of innocent or negligent misrepresentation, which are at the heart of a § 11 claim, would survive. The plaintiffs’ case should not have been dismissed because they alleged more than was necessary to recover under § 11 of the Securities Act. We recognize that other courts have sometimes applied Rule 9(b) to claims brought under §§ 11 and 12(2) of the Securities Act of 1933. Such claims are said to be subject to Rule 9(b) when they are “grounded in fraud.” Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994); In re Stac Electronics Securities Litigation, 89 F.3d at 1404-05 (footnote omitted). Accord, Shapiro v. UJB Financial Corp., 964 F.2d 272, 288 (3d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Sears v. Likens, 912 F.2d 889, 892-93 (7th Cir.1990). Defendants ask that we follow these authorities and affirm the dismissal of the §§ 11 and 12(2) counts of this complaint for failure to comply with Rule 9(b). We decline to do so for two reasons. First, the complaint in this case expressly disavows any claim of fraud in connection with the § 11 and § 12(2) counts, as we have already noted. See Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (complaint avoids grounding in fraud; allegation that defendants actually possessed the information they failed to disclose is not an averment of fraud sufficient to subject the complaint to Rule 9(b)). In addition, a pleading standard which requires a party to plead particular facts to support a cause of action that does not include fraud or mistake as an element comports neither with Supreme Court precedent nor with the liberal system of “notice pleading” embodied in the Federal Rules of Civil Procedure. Federal Rule 8(a)(2) requires a plaintiff to plead only “a short and plain statement of the claim" }, { "docid": "9696435", "title": "", "text": "But see Kensington Capital Management v. Oakley, Inc., No. SACV97-808GLTEEX, 1999 WL 816964, *5 (C.D.Cal.1999) (refusing to follow PPM and holding that an issuer may be considered a statutory seller in a firm commitment underwriting) (citations omitted). In some instances, courts have acknowledged that determining whether a defendant qualifies as a statutory seller under § 12(a)(2) is a “question of fact, not properly decided on a motion to dismiss.” In re Stratosphere, 1 F.Supp.2d at 1120. See also In re Paracelsus Corp., 6 F.Supp.2d 626, 632 (S.D.Tex.1998) (observing that “[t]he determinations of a ‘seller’ under the leading cases that have interpreted Section 12... have been rather fact intensive questions,” and therefore should be considered “in an evidentiary context rather than on a bare pleading”) (citations omitted). Before determining whether the plaintiffs have standing to sue under § 11 and § 12, I will discuss whether Rule 9(b) applies to these claims. Because § 11 and § 12 are based in negligence and do not include a scienter requirement, Newcome v. Esrey, 862 F.2d 1099, 1106 (4th Cir. 1988), it is generally recognized that Fed. R.Civ.P. 9(b) does not apply to such claims. See In re USEC Sec. Litig., 190 F.Supp.2d 808, 826 (D.Md.2002) (“[A] plaintiff is not required under § 11 to plead or prove fraud. Liability under § 11 is virtually absolute even for innocent misstatements.”) (citing Huddleston, 459 U.S. at 382, 103 S.Ct. 683); In re Jiffy Lube Sec. Litig., 772 F.Supp. 258, 260 (D.Md.1991) (“Section 11 sounds in negligence, not fraud, and therefore, is not subject to the particularity requirements of Fed.R.Civ.P. 9(b).”). While recognizing that scienter is not an element of § 11 and § 12, many circuit courts and at least one court in this district have nonetheless required that the plaintiffs’ allegations be pled with particularity pursuant to Fed.R.Civ.P. 9(b) when the plaintiffs claims sound in fraud. See Rombach v. Chang, 355 F.3d 164, 170-71 (2d Cir.2004); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404-05 (9th Cir.1996); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994); Shapiro v. UJB Fin." }, { "docid": "22739662", "title": "", "text": "the basis of a claim. In that event, the claim is said to be “grounded in fraud” or to “sound in fraud,” and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b). See, e.g., Anderson v. Clow (In re Stac Elecs. Sec. Litig.), 89 F.3d 1399, 1404-05 (9th Cir.1996) (“We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 [of the 1933 Securities Act] when, as here, they are grounded in fraud.” (emphasis added)); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (“[D]espite the minimal requirements of Sections 11 and 12(2) [of the 1933 Securities Act], a complaint asserting violations of those statutes may yet ‘sound[ ] in fraud.’ For example, if a plaintiff were to attempt to establish violations of Sections 11 and 12(2) as well as the anti-fraud provisions of the Exchange Act through allegations in a single complaint of a unified course of fraudulent conduct, fraud might be said to ‘lie[ ] at the core of the action.’ ” (emphasis added) (citation omitted, third and fourth brackets in original)); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (“Appellants maintain that their 1933 Securities Act claims were inappropriately subjected . to the Rule 9(b) heightened pleading standard. This argument is untenable in light of the complaint’s wholesale adoption of the allegations under the securities fraud claims for purposes of the Securities Act claims. When 1933 Securities Act claims are grounded in fraud rather than negligence as they clearly are here, Rule 9(b) applies.” (emphasis added)); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir.1992) (“[W]e determine whether Rule 9(b) applies to § 11 and § 12(2) claims grounded in fraud, a question not yet decided by this court.... [T]he plain language of the rule clearly encompasses § 11 and § 12(2) claims based on fraud like those before us.” (emphasis added)). In other cases, however, a plaintiff may choose not to allege a unified course of fraudulent conduct in support of a claim, but rather to" }, { "docid": "9696436", "title": "", "text": "(4th Cir. 1988), it is generally recognized that Fed. R.Civ.P. 9(b) does not apply to such claims. See In re USEC Sec. Litig., 190 F.Supp.2d 808, 826 (D.Md.2002) (“[A] plaintiff is not required under § 11 to plead or prove fraud. Liability under § 11 is virtually absolute even for innocent misstatements.”) (citing Huddleston, 459 U.S. at 382, 103 S.Ct. 683); In re Jiffy Lube Sec. Litig., 772 F.Supp. 258, 260 (D.Md.1991) (“Section 11 sounds in negligence, not fraud, and therefore, is not subject to the particularity requirements of Fed.R.Civ.P. 9(b).”). While recognizing that scienter is not an element of § 11 and § 12, many circuit courts and at least one court in this district have nonetheless required that the plaintiffs’ allegations be pled with particularity pursuant to Fed.R.Civ.P. 9(b) when the plaintiffs claims sound in fraud. See Rombach v. Chang, 355 F.3d 164, 170-71 (2d Cir.2004); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404-05 (9th Cir.1996); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir.1992); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990); Hershey v. MNC Financial, Inc., 774 F.Supp. 367, 376 (D.Md.1991) (holding that Rule 9(b) applies to § 11 and § 12 claims when these claims are essentially “aver-ments of fraud”). In so holding, courts have applied Rule 9(b) when plaintiffs nominally assert their § 11 and § 12 claims “do not sound in fraud” but make no effort to support such claims with non-fraud or negligence allegations. In re Stac Elees. Sec. Litig., 89 F.3d at 1405 n. 2 (“nominal efforts are unconvincing where the gravamen of the complaint is plainly fraud and no effort is made to show any other basis for the claims levied at the Prospectus.”). See also In re Ultrafem Inc. Sec. Litig., 91 F.Supp.2d 678, 690-91 (S.D.N.Y.2000) (applying Rule 9(b) where “plaintiffs make little, if any, effort to differentiate their asserted negligence claims from the fraud claims which permeate the Complaint”). Cf. In re NationsMart Corp. Sec. Litig., 130 F.3d 309, 314 (8th Cir.1997)" }, { "docid": "23406033", "title": "", "text": "Section 11 and Section 12(a)(2) claims, leaving the court to “sift through [those] allegations ... in search of some ‘lesser included’ claim of strict liability.” CALPERS, 394 F.3d at 162 (quoting Lone Star Ladies Inv. Club v. Schlotzsky’s, Inc., 238 F.3d 363 (5th Cir.2001)). Rather, both plaintiffs have expressly pled negligence in connection with their Section 11 and 12(a)(2) claims. We regard this difference in pleading as dispositive. In CALPERS, we subjected the plaintiffs pleading to the strictures of Rule 9(b) because the complaint was “completely devoid of any allegations that Defendants acted negligently.” CALPERS, 394 F.3d at 161. Similarly, in Shapiro, we held that Rule 9(b) applied to Section 11 and Section 12(a)(2) claims because there was “not a hint in the allegations that defendants were negligent in violating §§ 11 and 12[ (a) ](2).” Shapiro, 964 F.2d at 287-88. Both CALPERS and Shapiro thus presented complaints containing allegations of fraud exclusively; no allegations of negligence were pled in support of the Securities Act claims. See, e.g., Shapiro, 964 F.2d at 288 (“[W]e are not presented with a mixture of allegations of negligence [and] fraud.”) (citation and quotation marks omitted). We observed in Shapiro that “[i]t would be unreasonable to infer a negligence cause of action from [nothing more than a] fleeting and obscure reference [in the complaint] to ‘gross negligence.’ ” Id. at 288 n. 18. Other courts of appeals presented with Section 11 or 12(a)(2) claims premised exclusively on allegations of fraud have followed our approach in Shapiro and declined to infer negligence where it has not been expressly pled. See, e.g., In re Daou Sys., 411 F.3d 1006, 1028 (9th Cir.2005); Rombach, 355 F.3d at 172; Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994). Conversely, where the claims are expressly premised on negligence rather than fraud, Rule 9(b) has been held inapplicable. See Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1251-52 (10th Cir.1997) (assuming arguendo that the approach in Shapiro is correct and holding that Section 11 claim not premised on fraud did not trigger Rule 9(b) scrutiny). We now hold that" }, { "docid": "23568278", "title": "", "text": "successful action under section 11 does not require proof of fraud, and therefore, the Rule 9(b) particularity requirement does not apply.”) (citations omitted); Billet v. Storage Tech. Corp., 72 F.R.D. 583, 585 (S.D.N.Y.1976) (noting that fraud need not be alleged under sections 11 and 12 and Rule 9(b) is inapplicable to them); Schoenfeld v. Giant Stores Corp., 62 F.R.D. 348, 351 (S.D.N.Y.1974) (\"[sjection 11 is not restricted by the rule of particularity”). . The Second Circuit has not yet decided this issue. See 11/1/02 Tr. at 205 (statement of Mark Holland). . See, e.g., Danis v. USN Communications, Inc., 73 F.Supp.2d 923, 932 (N.D.Ill.1999) (\"It remains unsettled in this circuit whether Rule 9(b)'s requirement of particularity when pleading fraud applies to §§11 and 12 claims.”); In re First Merchs. Acceptance Corp. Sec. Litig., No. 97-C2715, 1998 WL 781118, at * 11 (N.D.I11. Nov.4, 1998) (“The court agrees with Plaintiffs, however, that the court in Sears was not asked to, nor did it, determine whether Rule 9(b) properly applied to § 11 claims, which do not require scienter for liability.”). . The Fifth Circuit’s alleged holding that the sound in fraud doctrine requires that Section 11 claims be pled with particularity rests on the following footnote: \"When 1933 Securities Act claims are grounded in fraud rather than negligence as they clearly are here, Rule 9(b) applies.” Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994). This doctrine has now been somewhat modified by the Circuit’s holding in Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.3d 363, 369 (5th Cir.2001) (Higginbotham, J.) (holding that because a complaint \"expressly do[es] not assert that defendants are liable for fraudulent or intentional conduct and disavow[s] and disclaim[s] any allegation of fraud” under Section 11, \"[t]hose claims do not .'sound in fraud’ and cannot be dismissed for failure to satisfy Rule 9(b)”) (alteration in original). . In Shapiro v. UJB Fin. Corp., 964 F.2d 272, 287 (3d Cir.1992), the court stated: \"The district court held that the § 11 and § 12(2) allegations in Count II 'sounded in fraud' and lliat Rule" } ]

[ { "docid": "23567225", "title": "", "text": "PER CURIAM: In 1936 petitioner was convicted on his plea of guilty to a charge of first-degree murder in the Superior Court of San Mateo County, California, and sentenced to life imprisonment. He instituted this habeas corpus proceeding in 1967 challenging his conviction on constitutional grounds. The dis trict court issued an order to show cause. In responding, the State conceded that several of petitioner’s allegations “would ordinarily warrant * * * an evidentiary hearing”; but asserted that such a hearing was unnecessary because petitioner had deliberately bypassed available state procedure for the vindication of his federal claims; and because petitioner’s factual allegations had been determined against him in written findings entered in a state court proceeding which were presumed to be correct under 28 U.S.C. § 2254(d). The district court denied the petition on the latter ground. Petitioner argues that the district court’s reliance upon the state court findings cannot be sustained because the district court did not have before it the transcript of the state evidentiary hearing upon which these findings were based. We agree. Cases which have considered section 2254(d) have uniformly held that a federal district court may rely upon state court findings only after making an independent review of the record of the state hearing. United States ex rel. Worlow v. Pate, 411 F.2d 972, 974 (7th Cir. 1969); United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3d Cir. 1969); Jackson v. Nelson, 404 F.2d 1138, 1140-1141 (9th Cir. 1968); Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968); Brown v. Crouse, 399 F.2d 311 (10th Cir. 1968). See also Canales v. Baker, 406 F.2d 685, 686-687 (10th Cir. 1969). The same result is reached without specific reference to section 2254(d) in Piche v. Rhay, 422 F.2d 1309 (9th Cir. 1970); Connor v. Wingo, 409 F.2d 21 (6th Cir. 1969); and Dentis v. Oklahoma, 376 F.2d 590 (10th Cir. 1967). Moreover, petitioner alleged that documents known to be “forged and fraudulent” were received in evidence in the state court proceeding; and that he had discovered substantial new evidence subsequent to the state court" } ]

[ { "docid": "1567701", "title": "", "text": "his constitutional rights were abridged by the state trial court’s failure to apprise him of his right to appeal with court-appointed counsel if he was indigent. The district court summarily rejected this claim relying upon the established Fifth Circuit rule that a state trial judge has no duty to advise a convicted defendant of his right to appeal with court-appointed counsel unless the court knows or should have known of the defendant’s indigency and his desire to appeal. See e.g. Malone v. Alabama, 514 F.2d 77 (5th Cir.), cert. denied, 423 U.S. 990, 96 S.Ct. 403, 46 L.Ed.2d 309 (1975); Collier v. Estelle, 488 F.2d 929, 931-32 (5th Cir.1974). This rule was first announced in Pate v. Holman, 341 F.2d 764, modified on other grounds, 343 F.2d 546 (5th Cir.1965), in which the court reasoned that such knowledge is necessary for the requisite state action to be implicated in any deprivation of a defendant’s appellate rights by his retained counsel. We believe Martin has raised serious questions regarding the continued vitality of Pate v. Holman and its progeny after the Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Martin argues that Cuyler rejected the state action theory upon which Pate was based and that this circuit should therefore abandon that decision and join other circuits which have held that the Constitution imposes a duty upon state trial judges to notify convicted defendants of their right to appeal with court-appointed counsel when indigent. See United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir.1969) (en banc), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970); United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir.1971); but see United States ex rel. O’Brien v. Maroney, 423 F.2d 865 (3d Cir.1970). Because this claim raises serious questions which were not adequately addressed in the district court, and because we have found it necessary to remand for an evidentiary hearing on Martin’s ineffective assistance claim, we do not believe we should reach the constitutional claim at this time." }, { "docid": "13241907", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This case challenges a May 22, 1970, district court order denying a petition for a writ of habeas corpus filed by a state prisoner sentenced to life imprisonment for first degree murder on September 9, 1957, after a hearing to determine the degree of murder following the entry of a guilty plea with the advice of counsel. The thorough opinion of Judge Higginbotham, 313 F.Supp. 237, with which, after consideration of the record as well as of the arguments and briefs of counsel, we are in agreement, makes it unnecessary for us to recite the lengthy history of the proceedings involving relator in both the state and federal courts, the facts, or the issues (particularly as to the voluntariness of the confession) raised in the district court and in this court, except as to the issue discussed below. See United States ex rel. Walker v. Maroney, 313 F.Supp. 237 (E.D.Pa.1970). We note that many of the issues argued here had previously similarly been determined in the case of relator’s co-defendant Crow-son. See United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175 (E.D.Pa. 1968), aff'd 411 F.2d 910 (3d Cir. 1969). Relying on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing. It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391" }, { "docid": "800999", "title": "", "text": "whether appellee has exercised or relinquished a constitutional right. As such, waiver becomes a federal question about which the federal courts are obligated to make their own independent determination. As said by Mr. Justice Black in Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314, 317 (1966): The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law. There is a presumption against the waiver of constitutional rights, see, e. g., Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 464-165, 86 L.Ed. 680, and for a waiver to be effective it must be clearly established that there was “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. See also Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970); Doerflein v. Bennett, 405 F.2d 171 (8th Cir. 1969); Fugate v. Gaffney, 313 F.Supp. 128, 132 (D.Neb.1970), aff’d, 453 F.2d 362 (8th Cir. 1971), cert. denied, 409 U.S. 888, 93 S.Ct. 142, 34 L.Ed.2d 145 (1972). 28 U.S.C. § 2254(d) was not intended to replace this constitutional obligation of the federal court. In In re Parker, 423 F.2d 1021, 1024 (8th Cir. 1970), cert. denied, Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551, Judge Lay stated it this way: To avoid misunderstanding, the statute does not replace the federal court’s constitutional obligation to make its own independent determination on federal questions. The Supreme Court has made clear that a federal court’s consideration of the constitutional question shall be plenary. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr. Justice Frankfurter said in Brown v. Allen, 344 U.S. 443, 506, 508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1952): “On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.” * ¡fc * *" }, { "docid": "10267845", "title": "", "text": "clearly erroneous, and were supported by the evidence. This type of review standing alone may not comply with federal standards. However, since this Court has conducted its own hearing into the matter, the findings of facts are independently based. Peterson alleges that his guilty plea was not made voluntarily and with an understanding of the nature of the charges against him. The trial court, petitioner contends, did not observe the standards promulgated in Missouri Supreme Court Rule 25.04. Rule 25.04, which is precisely the same as Rule 11, F.R.Crim.P., provides that the trial court “shall not accept the plea [of guilty] without first determining that the plea of guilty is made voluntarily with understanding of the nature of the charge.” In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court held that defendant’s guilty plea “must be set aside and the case remanded for another hearing at which he may plead anew” when the transcript of the proceedings shows that the federal trial court failed to comply with the mandate of Rule 11. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), expanded this holding to the states. However, neither McCarthy nor Boykin are to be applied retroactively. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Meller v. Missouri (C.A.8) 431 F.2d 120, 124 (1970), cert. denied 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445; Crosswhite v. Swenson (C.A.8) 444 F.2d 648, 650 (1971), cert. denied 405 U.S. 1042, 92 S.Ct. 1320, 31 L.Ed.2d 584. The record is not clear here, in the absence of a transcript, whether the trial court made an inquiry of the petitioner regarding his understanding of the charges and the consequences of his plea of guilty. It is necessary, therefore, to consider the reasoning in United States ex rel. Grays v. Rundle (C.A.3) 428 F.2d 1401 (1970), where the court stated at 1403: Assuming that the state trial court did not conduct, at the time of accepting the guilty plea, an inquiry sufficient to establish that" }, { "docid": "20054855", "title": "", "text": "proves the unreliability of the state proceeding. See United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3 Cir. 1969); Maxwell v. Turner, 411 F.2d 805 (10 Cir. 1969); Heyd v. Brown, 406 F.2d 346 (5 Cir. 1969); Maes v. Patterson, 401 F.2d 200 (10 Cir. 1968); Woodington v. Mathews, 401 F.2d 125 (7 Cir. 1968); Justus v. New Mexico, 378 F.2d 344 (10 Cir. 1967); Midgett v. Warden, 329 F.2d 185 (4 Cir. 1964). There exists here no contention that the 1952 state proceeding was not a full, fair and adequate hearing or that it in any way failed to meet the standards set forth in § 2254(d) (1-8). Cf. Hawkins v. Bennett, 423 F.2d 948 (8 Cir. 1970); Roach v. Bennett, 392 F.2d 743 (8 Cir. 1968). The federal district court in fact relied upon the exact testimony taken in the state proceeding. The federal district judge made no finding that the 1952 state court factual determination was not supported by the record. Under these circumstances, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.” See § 2254(d). This burden was not satisfied. To avoid misunderstanding, the statute does not replace the federal court’s constitutional obligation to make its own independent determination on federal questions. The Supreme Court has made clear that a federal court’s consideration of the constitutional question shall be plenary. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr. Justice Frankfurter said in Brown v. Allen, 344 U.S. 443, 506, 508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1952): “On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.” ****** “Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination. The congressional requirement is greater. The State" }, { "docid": "4330466", "title": "", "text": "might be cognizant of trial errors notwithstanding the plea is reasonable. This contention is meritless. The trial rulings involved here, pertaining to instructions and evidentiary matters, are not of constitutional magnitude and therefore are not cognizable by a federal court under 28 U.S.C. § 2254. Therefore, the position espoused by federal law on this question is immaterial. Moreover, the cases decided prior to the Brady trilogy indicate that federal courts investigated only constitutional infirmities in assessing the voluntariness and intelligence of a guilty plea. See, e.g., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956) (uncounseled defendant); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (coerced confessions which induced and tainted subsequent guilty pleas). See also, Moreno v. Beto, 415 F.2d 154 (5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968); Kott v. Green, 387 F.2d 136 (6th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (9th Cir. 1967), all of which involved a judicial investigation of coerced confessions which purportedly induced guilty pleas. Defects neither jurisdictional nor constitutional in nature, occurring at any prior stage in the proceedings, were deemed waived in federal courts by the entry of a guilty plea. United States v. Rook, 424 F.2d 403, 405 (7th Cir.), cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964). We note that the trial court properly and extensively admonished petitioner prior to the acceptance of his plea. While judicial admonitions in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), aid the court in discharging its obligation to ascertain the voluntary and intelligent character of a plea, we agree with the position of the Fifth Circuit that: [A]n equally important aspect of the courts’" }, { "docid": "20054854", "title": "", "text": "guilty plea resulted from the psychological coercion by the sheriff and from the denial of the effective assistance of counsel. The defendant was 50 years old at the time of the crime and had had a limited education (fifth grade). The district court, relying upon Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), held that Parker was denied counsel of his own choosing and that he had likewise been denied effective assistance of counsel in that his retained attorney, W. M. Aaberg, (1) failed to provide minimal standards of assistance and (2') did not have adequate qualifications to provide a criminal defense in a capital case. The 1952 transcript of the state habeas corpus hearing was the sole basis upon which the federal district court based its finding. In a federal habeas corpus proceeding under 28 U.S.C. § 2254(d), as amended, (Supp. 1959-1967) it is provided that the state court determination of a factual issue “shall be presumed to be correct” unless the applicant establishes a circumstance, therein enumerated, which proves the unreliability of the state proceeding. See United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3 Cir. 1969); Maxwell v. Turner, 411 F.2d 805 (10 Cir. 1969); Heyd v. Brown, 406 F.2d 346 (5 Cir. 1969); Maes v. Patterson, 401 F.2d 200 (10 Cir. 1968); Woodington v. Mathews, 401 F.2d 125 (7 Cir. 1968); Justus v. New Mexico, 378 F.2d 344 (10 Cir. 1967); Midgett v. Warden, 329 F.2d 185 (4 Cir. 1964). There exists here no contention that the 1952 state proceeding was not a full, fair and adequate hearing or that it in any way failed to meet the standards set forth in § 2254(d) (1-8). Cf. Hawkins v. Bennett, 423 F.2d 948 (8 Cir. 1970); Roach v. Bennett, 392 F.2d 743 (8 Cir. 1968). The federal district court in fact relied upon the exact testimony taken in the state proceeding. The federal district judge made no finding that the 1952 state court factual determination was not supported by the record. Under these circumstances, “the burden shall rest upon the" }, { "docid": "4486984", "title": "", "text": "the state trial court’s failure to conduct a hearing to determine whether the proposed witness had an independent basis on which to base her in-court identification or whether the in-court identification was the result of a suggestive photographic display. He argues that Sandra Clemmons’ in-court identification of him was tainted by the pretrial photographic display and deprived him of his constitutional rights. He does not, however, allege that the pretrial identification was impermissibly suggestive or otherwise improper. I. The District Court summarily dismissed Hill’s petition. The Court did not examine the transcript of the state trial proceedings but merely relied upon the facts as alleged in the petition and the opinion of the Missouri Court of Appeals. Appellant contends that the District Court should have examined the state transcript before dismissing the petition. We have stated on several occasions that in a habeas corpus proceeding, a federal district court may not rely on the findings of fact of a state court unless the federal court has independently examined a transcript of the state proceedings. See Irwin v. Wolff, 529 F.2d 1119, 1122 n. 10 (8th Cir. 1976); Winford v. Swenson, 517 F.2d 1114, 1118 n. 7 (8th Cir.), cert. denied, 423 U.S. 1023, 96 S.Ct. 464, 46 L.Ed.2d 396 (1975). See also Thacker v. Bordenkircher, 557 F.2d 98, 99 (6th Cir. 1977); Dyer v. Wilson, 446 F.2d 900, 901 (9th Cir. 1971); Selz v. California, 423 F.2d 702, 703 (9th Cir. 1970); United States ex rel. Worlow v. Pate, 411 F.2d 972, 974 (7th Cir. 1969), after remand, 437 F.2d 909, 910-11 (7th Cir.), cert. denied, 403 U.S. 921, 91 S.Ct. 2238, 29 L.Ed.2d 699 (1971); United States ex rel. Thomas v. Maroney, 406 F.2d 992, 994-95 (3rd Cir. 1969). In all of these cases, however, the habeas petitions alleged violations of a constitutional magnitude. A district court need not entertain a ha-beas petition at all unless the facts alleged in the petition indicate that petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because no laws or" }, { "docid": "6690140", "title": "", "text": "and 1961) and had attended Bismarck Junior College for one year in 1964. The trial court mentioned that the defendant was not unfamiliar with the procedure of arrest. On this basis the court found after careful study of Iverson’s short statement that no accusations or coercion were used by the state interrogators. When this issue was raised in the federal district court, it determined without an evidentiary hearing, from the state record itself, that the statement was in violation of the defendant’s privilege against self-incrimination. We have noted previously that a federal district judge should exercise caution under these circumstances from determining factual questions anew without an evidentiary hearing. As stated in In re Parker, 423 F.2d 1021, 1024 (8 Cir. 1970), cert. denied Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551: “. . . [W]here the state record demonstrates procedural fairness and sufficient evidence exists to support the state court’s factual findings, the statute as well as the legislative purpose of § 2254(d) makes clear that these findings are to be presumptively correct absent a showing of constitutional deficiency in the state proceeding.” The federal district court evidently felt that an evidentiary hearing was not required since it ruled that as a matter of law Iverson’s privilege against self-incrimination was violated. This, as noted, was incorrect. However, there exist additional factors which justify further investigation. The federal district judge found additionally that it was “significant” that Iverson had been ex amined by a psychiatrist and senior psychologist on December 12, 1968, and found to be incompetent so as not to understand the nature of the proceedings against him. Whether Iverson was incompetent at the time that he gave an incriminating statement directly affects the issue of voluntariness. See Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); United States v. Silva, 418 F.2d 328, 330 (2 Cir. 1969); Green v. United States, 127 U.S. App.D.C. 272, 389 F.2d 949, 952 (D.C. Cir. 1967). Although the state trial court found the statement not to be coercively given, we specifically note" }, { "docid": "2589375", "title": "", "text": "This decision was subsequently affirmed by the Kentucky Court of Appeals on November 9, 1973. Hendron v. Commonwealth, Ky., 501 S.W.2d 795. Having exhausted all post conviction remedies in the Kentucky courts, Hendron filed a petition for writ of habeas corpus in the District Court on December 12, 1973. On his appeal Hendron contends: 1) the record shows that his plea of guilty was not voluntary under the standards prevailing at the time the plea was entered (pre-Boykin); and, 2) the standards enunciated by the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 69 S.Ct. 1302, 93 L.Ed. 1879 (1969), should be applied retroactively and that he should be afforded relief since the record fails to show compliance with those standards. We affirm. The District Court made findings of fact that the plea of guilty was prompted by the overwhelming evidence against him, and that at the time of the entry of the plea, Hendron was informed of the nature of the indictment and the consequences of pleading guilty. These findings are fully supported by the record. Asserting that Boykin should be applied retroactively, Hendron contends that his guilty plea was invalid because the record does not affirmatively show the plea was given intelligently and voluntarily. This court has held that Boykin should not be applied retroactively. See, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970). In Scranton, we said: Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir., 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The Fourth," }, { "docid": "4158900", "title": "", "text": "in a Rule 29.15 motion but not advanced on appeal is considered abandoned. Sloan v. Delo, 54 F.3d 1371, 1382 (8th Cir.1995) (citing O’Neal v. State, 766 S.W.2d 91, 91(Mo.) (en banc), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)), cert. denied, — U.S. -, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996). Reese’s contention that the ineffective assistance claims are not barred because he raised them in his state habeas corpus petition pursuant to Missouri Supreme Court Rule 91 is without merit. See State ex rel. Simmons v. White, 866 S.W.2d 443, 444 (Mo.1993) (en banc) (petitioner who fails to advance claim on appeal cannot seek review in Rule 91 petition unless claim presents jurisdictional issue or circumstances so “rare and extraordinary” that manifest injustice will result). Although the Missouri courts have not yet determined what circumstances constitute manifest injustice, we have held that “state habeas proceedings are not to be used in lieu of Rule 29.15 unless the petitioner can demonstrate that the claim was not ‘known to him’ when he filed his 29.15 motions.” Sloan, 54 F.3d at 1382 (citing Simmons, 866 S.W.2d at 446-47). Clearly, this is not the case here. Likewise, Reese’s contention that the claims are not barred because they were raised in his motion to recall the mandate is without merit, for “a motion to recall the mandate cannot be used to allege ineffective assistance of trial counsel.” Nave v. Delo, 62 F.3d 1024, 1031 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). Reese further argues that his claims are not procedurally barred because Rule 29.15 was designed to thwart federal habeas review of his state convictions and is thus invalid. “[A] procedural default under state law may constitute independent and adequate state law grounds precluding federal review.” Oxford v. Delo, 59 F.3d 741, 744 (8th Cir.1995) (citing Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989)), cert. denied, — U.S. -, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996). The state procedural rule must be both firmly established" }, { "docid": "4486985", "title": "", "text": "Irwin v. Wolff, 529 F.2d 1119, 1122 n. 10 (8th Cir. 1976); Winford v. Swenson, 517 F.2d 1114, 1118 n. 7 (8th Cir.), cert. denied, 423 U.S. 1023, 96 S.Ct. 464, 46 L.Ed.2d 396 (1975). See also Thacker v. Bordenkircher, 557 F.2d 98, 99 (6th Cir. 1977); Dyer v. Wilson, 446 F.2d 900, 901 (9th Cir. 1971); Selz v. California, 423 F.2d 702, 703 (9th Cir. 1970); United States ex rel. Worlow v. Pate, 411 F.2d 972, 974 (7th Cir. 1969), after remand, 437 F.2d 909, 910-11 (7th Cir.), cert. denied, 403 U.S. 921, 91 S.Ct. 2238, 29 L.Ed.2d 699 (1971); United States ex rel. Thomas v. Maroney, 406 F.2d 992, 994-95 (3rd Cir. 1969). In all of these cases, however, the habeas petitions alleged violations of a constitutional magnitude. A district court need not entertain a ha-beas petition at all unless the facts alleged in the petition indicate that petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because no laws or treaties of the United States are implicated in this case, in order for Hill’s petition to entitle him to relief, it must allege facts indicating that his constitutional rights have been violated, see Collins v. Swenson, 443 F.2d 329, 331 (8th Cir. 1971). It follows that unless petitioner has alleged a constitutional claim, the district court properly dismissed the petition without an independent examination of the state transcript. We must therefore determine from an examination of the petition whether facts giving rise to a constitutional violation in the state trial have been alleged. II. Because Hill’s petition was filed pro se, we are obligated to give it a liberal construction. See Wilwording v. Swenson, 502 F.2d 844, 847 n. 4 (8th Cir. 1974), cert. denied, 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975). In his petition, Hill alleges that the state trial court failed to hold a previously ordered hearing to determine whether Sandra Clemmons’ in-eourt identification was independently supported and not tainted by a pretrial photographic display. He also alleges that according" }, { "docid": "3643237", "title": "", "text": "his guilty plea was involuntary. Reference is made to the carefully considered opinion of the Supreme Court of Missouri, supra, and the very thorough opinion of the United States District Court, supra, each court having dealt most adequately with petitioner’s contention. It should be noted that there was evidence to support the finding of the state court that petitioner’s plea was made voluntarily. The allegations of the petitioner in his habeas corpus petition do not present the “convincing evidence” necessary to justify a federal court in reviewing a state court’s determination of disputed facts. Tyler v. Swenson, supra, 8 Cir., 1970, 427 F.2d 412, 414-415; In re Parker, 8 Cir., 1970, 423 F.2d 1021, 1027, cert. denied, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551. Petitioner finally argues that he was denied a pre-trial hearing on the issue of his competency to stand trial and alleges that the lack of such a hearing deprived him of his constitutional rights as outlined in Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. The Missouri statute which governs competency hearings is § 552.020, RSMo 1969, V.A.M.S. In a case very similar to the instant one, McCormick v. State, 1971, 463 S.W.2d 789, at 790, the Supreme Court of Missouri said: “V.A.M.S. § 552.020 requires only that the trial court may hold a hearing on the issue of competency to stand trial on its own motion, and shall hold a hearing when the psychiatric report is contested. In our opinion, the provisions of § 552.020 do not conflict with the prevailing federal standards.” (Emphasis in original.) We agree with this construction of § 552.020. Whether the trial judge complied with all the requirements of § 552.-020 is not a question with which this court must deal. In order to obtain relief by means of federal habeas corpus, it is incumbent upon a state prisoner to demonstrate the deprivation of some constitutionally protected right during a state’s criminal proceedings. Pate v. Robinson, supra, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, held that where there was uncontradicted evidence" }, { "docid": "6321740", "title": "", "text": "the provision of free transcript. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Furthermore, even if the Constitution required provision of a free transcript and appointment of counsel for purposes of appeal from a post-judgment relief proceeding, the finding of the circuit court that the petitioner was not indigent would preclude its appointment of counsel and provision of free transcript. The petitioner also claims he was prejudiced at trial by the incompetence of court-appointed counsel that resulted from counsel’s failure to present two “absolute” defenses to the charge upon which he was convicted. The district court erroneously held that this contention was considered and rejected by the Illinois Supreme Court in People v. Rebenstorf, 37 Ill.2d 572, 229 N.E.2d 483 (1967)). Because the issue of incompeteney of trial counsel was not before the Illinois Supreme Court, the district court erred in dismissing that contention on the basis of the presumed correctness under 28 U.S.C. § 2254(d) of the prior Illinois Supreme Court decision. Rebenstorf first raised the incompetency issue for consideration by the state court in his post-judgment relief petition filed subsequent to the Illinois Supreme Court’s decision in the post-conviction hearing appeal. Although the federal habeas corpus petition was filed after the Vermillion County Circuit Court rejected Rebenstorf’s incompetency of counsel claim, the court below did not have before it the record of the state court proceedings relating to this claim. The state court’s memorandum opinion set forth a number of findings of fact relative to the incompetency claim, but these findings, the record purportedly supporting them, and the memorandum opinion were not before the district court. This court said in United States ex rel. Worlow v. Pate, 411 F.2d 972 (7th Cir. June 10, 1969): “The federal court may accept the state court’s findings of fact, but only if it determines, by an independent view of the record, that those findings were the result of a ‘full and fair hearing.’ ” We held in that case that “the" }, { "docid": "933822", "title": "", "text": "308 (1966). The opinion, by Justice Roberts, dealt with two issues, viz., double jeopardy and the admissibility of the confession. Exhaustion of State Remedies Our independent examination of the record before the State Supreme Court discloses the following: (1) Appellant’s pro se brief before that Court contained only one “State ment of Question Involved,” this being the double jeopardy issue, and the substantive argument in the brief was limited to this point. (2) Attached to appellant’s brief before the Pennsylvania Supreme Court were both of the petitions for habeas corpus which appellant claims to have filed with the Butler County court and both of the opinions by Judge Shumaker denying these petitions. Appellant’s counsel has furnished to this court the two state petitions and the two state lower court opinions. From our examination of the record in the district court, it appears that the court did not have before it either of the opinions of Judge Shumaker referred to above but that both of the petitions filed in the Butler County court were attached to the habeas corpus application filed below. From the foregoing, we believe it is necessary to remand this appeal to the district court to determine from a fair appraisal of both of the state habeas corpus petitions filed by appellant, and the opinions which dismissed them, whether he had in fact raised all of the constitutional claims he now makes prior to seeking relief in the federal courts. As we said in United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3d Cir.1969), the district courts have the power, and the duty, to secure and examine all available state records before disposing of a habeas corpus petition. See also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Conner v. Wingo, 409 F.2d 21 (6th Cir.1969); Jackson v. Nelson, 404 F.2d 1138 (9th Cir.1968); Wright and Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L.J. 895, 923 (1966). In determining whether appellant’s state court petitions adequately raised the claims he now makes in the federal" }, { "docid": "17588647", "title": "", "text": "539-41, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976); Knott v. Howard, 511 F.2d F.2d 1060 (1st Cir. 1975) (per curiam). Cf., Schneckloth v. Bustamonte, 412 U.S. 218, 223-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Collins v. Brierly, 492 F.2d 735 (3d Cir.) (en banc), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1974). Therefore, while it is true that Tanner had “let the cat out of the bag” United States v. Bayer, 331 U.S. supra at 540, 67 S.Ct. at 1398, in his initial admissions to the New York detectives, this was only one factor bearing on the disputed issue of the voluntariness of the later, fully advised statement. As this Court stated previously in a similar context, the fact “that the admission was once made should not, in itself, always be fatal.” United States v. Knight, 395 F.2d 971, 975 (2d Cir. 1968), cert. denied, 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed.2d 249 (1969). See, also Myers v. Frye, 401 F.2d 18 (7th Cir. 1968). At the Huntley hearing the state court made factual findings regarding the totality of the circumstances surrounding the defendant’s several statements to the various state officials. It held that Tanner’s inculpatory statement to the Assistant District Attorney was made voluntarily. Its decision was unanimously affirmed by the New York Appellate Division and the Court of Appeals. In this federal collateral proceeding the findings of the state court are presumptively correct pursuant to 28 U.S.C. § 2254(d). See, La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (per curiam); Winford v. Swenson, 517 F.2d 1114, 1118 (8th Cir. 1975); United States ex rel. Sabella v. Follette, 432 F.2d 572 (2d Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 905, 27 L.Ed.2d 822 (1971). Since petitioner-appellant fails to establish, nor does it appear, that the evidentiary hearing afforded him in the state court on his involuntariness claim was deficient in any respect described in the seven exceptions to Section 2254(d), and because we" }, { "docid": "801000", "title": "", "text": "Cir. 1971), cert. denied, 409 U.S. 888, 93 S.Ct. 142, 34 L.Ed.2d 145 (1972). 28 U.S.C. § 2254(d) was not intended to replace this constitutional obligation of the federal court. In In re Parker, 423 F.2d 1021, 1024 (8th Cir. 1970), cert. denied, Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551, Judge Lay stated it this way: To avoid misunderstanding, the statute does not replace the federal court’s constitutional obligation to make its own independent determination on federal questions. The Supreme Court has made clear that a federal court’s consideration of the constitutional question shall be plenary. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr. Justice Frankfurter said in Brown v. Allen, 344 U.S. 443, 506, 508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1952): “On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.” * ¡fc * * * ^ “Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.” The federal court is obligated to make a full and complete review of the records of the state courts in order to comprehend the totality of the circumstances upon which the ultimate question of waiver must be determined. In Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the United States Supreme Court stated: It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.” A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The" }, { "docid": "3643236", "title": "", "text": "cited and relied upon by the petitioner, Tyler v. Swenson, 8 Cir., 1970, 427 F.2d 412, at 417; “ * * * a trial judge is not to be disqualified simply because he is familiar with the proceedings and supplements the record with observations. Nor do a trial judge’s supplemental statements into the record make him a material witness, unless he offers disputed and material testimony which is challenged by the petitioner. In the instant case it is particularly significant that the trial judge’s recollection was the only testimony which refuted petitioner’s claim, a claim which chal-leged the propriety of the judge’s prior conduct.” (Emphasis in the original.) An examination of the complete record convinces us that petitioner received a full and fair state court hearing on his motion to vacate under the provisions of Rule 27.26, supra, and thus under the principles of Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770, the District Court was not compelled to hold a de novo evidentiary hearing. Petitioner also contends that his guilty plea was involuntary. Reference is made to the carefully considered opinion of the Supreme Court of Missouri, supra, and the very thorough opinion of the United States District Court, supra, each court having dealt most adequately with petitioner’s contention. It should be noted that there was evidence to support the finding of the state court that petitioner’s plea was made voluntarily. The allegations of the petitioner in his habeas corpus petition do not present the “convincing evidence” necessary to justify a federal court in reviewing a state court’s determination of disputed facts. Tyler v. Swenson, supra, 8 Cir., 1970, 427 F.2d 412, 414-415; In re Parker, 8 Cir., 1970, 423 F.2d 1021, 1027, cert. denied, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551. Petitioner finally argues that he was denied a pre-trial hearing on the issue of his competency to stand trial and alleges that the lack of such a hearing deprived him of his constitutional rights as outlined in Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d" }, { "docid": "17588648", "title": "", "text": "Frye, 401 F.2d 18 (7th Cir. 1968). At the Huntley hearing the state court made factual findings regarding the totality of the circumstances surrounding the defendant’s several statements to the various state officials. It held that Tanner’s inculpatory statement to the Assistant District Attorney was made voluntarily. Its decision was unanimously affirmed by the New York Appellate Division and the Court of Appeals. In this federal collateral proceeding the findings of the state court are presumptively correct pursuant to 28 U.S.C. § 2254(d). See, La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (per curiam); Winford v. Swenson, 517 F.2d 1114, 1118 (8th Cir. 1975); United States ex rel. Sabella v. Follette, 432 F.2d 572 (2d Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 905, 27 L.Ed.2d 822 (1971). Since petitioner-appellant fails to establish, nor does it appear, that the evidentiary hearing afforded him in the state court on his involuntariness claim was deficient in any respect described in the seven exceptions to Section 2254(d), and because we find upon review that the record of the Huntley hearing fairly supports the state court’s determination on this issue, Tanner bears the burden of establishing by convincing evidence that the findings of fact by the state court are erroneous. Appellant fails to do so since he does not contest the factual findings of the Huntley court but rather relies exclusively upon a per se doctrine of involuntariness which we reject. Therefore we uphold the state court’s finding of voluntariness with respect to the defendant’s statement admitted at trial. See, United States ex rel. Lewis v. Henderson, 520 F.2d 896, 903-04 (2d Cir.), cert. denied, 423 U.S. 998, 96 S.Ct. 429, 46 L.Ed.2d 373 (1974); Whitaker v. Estelle, 509 F.2d 194, 197 (5th Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 140, 46 L.Ed.2d 103 (1975); Wright v. North Carolina, 483 F.2d 405 (4th Cir. 1973), cert. denied, 415 U.S. 936, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974); United States ex rel. Johnson v. Dept, of Correctional Services, 461 F.2d 956 (2d Cir. 1972). II Appellant" }, { "docid": "9350910", "title": "", "text": "plea negotiations in more detail. He fails, however, to allege that facts other than those set forth in the record of the guilty plea might be developed which would bear on the question of the judge’s participation in the plea negotiations or the voluntariness of the plea. See Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970). He argues further that an evidentiary hearing could develop fully his state of mind at the time of the plea. Determination of the defendant’s state of mind is certainly critical in determining the voluntariness of a plea. Ford v. United States, 418 F.2d 855 (8th Cir. 1969). See Griffith v. Wyrick, 527 F.2d 109 (8th Cir. 1975). However, to a large extent, it is to be determined by examining the totality of the circumstances surrounding the plea instead of solely on the basis of the defendant’s subsequent testimony. United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); Calabrese v. United States, 507 F.2d 259 (1st Cir. 1974); Ford v. United States, supra. Otherwise every plea would be subject to successful attack. We turn to the substantive issues raised. The active participation of a judge in plea bargaining is prohibited in federal court. See Fed.R.Crim.P. 11(e)(1); United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). Missouri also strongly disapproves the practice but holds that such participation, in and of itself, does not require setting a guilty plea aside. See Toler v. State, supra; State v. Tyler, 440 S.W.2d 470 (Mo.1969) (en banc). It is only one factor to be considered in determining whether the plea was involuntary. Similarly, a federal court can only set aside a state plea of guilty if the plea was involuntary. See, e. g., United States ex rel. Robinson v. Housewright, supra; United States ex rel. Elias v. McKendrick, 439 F.2d 771 (2nd Cir. 1971). We must, therefore, examine all the facts surrounding the guilty plea to determine its voluntariness. An analysis of the. guilty plea hearing transcript shows that Toler’s plea was" } ]

[ { "docid": "20398259", "title": "", "text": "the non-moving party has not diligently pursued discovery of the evidence.” Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C.Cir.1995); see also Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir.1994) (“Consistent with the salutary purposes underlying Rule 56(f), district courts should construe motions that invoke the rule generously, holding parties to the rule’s spirit rather than its letter.”). To obtain Rule 56(f) relief, the movant must submit an affidavit which “state[s] with sufficient particularity ... why [additional] discovery [is] necessary.” Ikossi v. Dep’t. of Navy, 516 F.3d 1037, 1045 (D.C.Cir.2008) (internal quotation marks, citation omitted). The affidavit must satisfy three criteria. First, it must outline the particular facts he intends to discover and describe why those facts are necessary to the litigation. Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 239, 248 (D.C.Cir.1999) (“Byrd [must] show what facts he intended to discover that would create a triable issue____”). Second, it must explain “why [he] could not produce [the facts] in opposition to the motion [for summary judgment].” Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C.Cir.1999); see also Berkeley, 68 F.3d at 1414 (“Notwithstanding the usual generous approach toward granting Rule 56(f) motions, the rule is not properly invoked to relieve counsel’s lack of diligence.”); Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.1992) (“[T]he trial court need not aid [a party] who ha[s] occasioned [its] own predicament through sloth.”). Third, it must show the information is in fact discoverable. Messina v. Krakower, 439 F.3d 755, 762 (D.C.Cir.2006) (“We will not find an abuse of discretion where the requesting party has offered only a conclusory assertion without any supporting facts to justify the proposition that the discovery sought will produce the evidence required.” (internal quotation marks omitted)). Convertino easily satisfied the first two Rule 56(f) criteria. In opposition to DOJ’s summary judgment motion, Convertino submitted the affidavit of his counsel, who outlined the particular facts Convertino hoped to discover and why those facts were necessary to his claim. See Kohn Aff. at 2, Convertino, No. 1:04-cv-00236 (D.D.C." } ]

[ { "docid": "1659270", "title": "", "text": "a court may defer considering a motion for summary judgment, deny the motion, or allow time for the non-movant to obtain affidavits or declarations or to take discovery if that party \"shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.\" Such an affidavit must state \"with sufficient particularity why additional discovery is necessary.\" United States ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (citation and internal quotation marks omitted). Specifically, the non-movant's affidavit must: (1) \"outline the particular facts the non-movant intends to discover and describe why those facts are necessary to the litigation,\" (2) \"explain why the non-movant could not produce the facts in opposition to the motion for summary judgment,\" and (3) \"show the information is in fact discoverable.\" Id. (citations and internal quotation marks omitted). The Court concludes that Plaintiffs fail on the first prong. Although they allege a bevy of discovery deficiencies, they cannot show why any of those missing facts are \"necessary\" to the litigation. To wit, Plaintiffs seek the following: • To depose another Rule 30(b)(6) witness who is more familiar with the ARGO system, as well as the operations of the Boca Raton branch's Departments of Dormant Accounts and of Returned Mail; • An unredacted version of SunTrust's policies regarding data retention (or a privilege log justifying the redacted versions); and • Extracts from the in-house operating instructions for archiving and deleting data concerning the accounts. Pl. Rule 56(d) Mot. at 20. Each of these requests relates, at bottom, to SunTrust's data-retention practices and whether the Bank might still retain (or could recover) information pertaining to Scherban-family accounts. Plaintiffs proffer testimony from four purported IT experts, who attest that the \"accounts' data\" is likely \"recoverable by the IT engineers,\" and that the experts are \"nearly certain ... that the data on the accounts is still contained on SunTrust's servers.\" Id. Had SunTrust complied with their discovery obligations, they theorize, \"that would have been discovered very quickly.\" Id. The Court sympathizes with Plaintiffs' frustration that SunTrust cannot account for" }, { "docid": "20430184", "title": "", "text": "of discovery pursuant to Rule 56(d)(1), (d)(2), or (e)(1). Rule 56(d) of the Federal Rules of Civil Procedure permits denial or continuance of a motion for summary judgment, “[i]f a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” A party requesting a Rule 56(d) continuance bears the burden of setting forth in declaration or affidavit form the specific facts its hopes to elicit from further discovery; and of demonstrating that the facts sought exist, and that the sought-after facts are essential to oppose summary judgment. See Fed. R. Civ. Proc. 56(d); Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.2008). Failing to meet this burden “is grounds for the denial” of a Rule 56(d) motion. Pfingston v. Ronan Eng. Co., 284 F.3d 999,1005 (9th Cir.2002). Here, plaintiffs have not pointed to any declarations or affidavits in support of their request for relief under Rule 56(d). They have offered woefully few specifics as to what facts remain to be discovered or how they would be material to their restitution claim. Nevertheless, given that defendants moved for summary judgment while nearly three months of fact discovery remained, and in light of the fact-intensive nature of the determination as to whether plaintiffs are entitled to restitution, defendants’ motion for summary judgment is denied without prejudice as to the restitution issue under Rule 56(e)(1) to “give [plaintiffs] an opportunity to proper ly support” their claims for restitution with evidence. 3. Standing for Injunctive Relief Defendants also challenge plaintiffs’ Article III standing for injunctive relief. To satisfy the United States Constitution’s standing requirement, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Seros. (TOC) Inc., 528" }, { "docid": "18482204", "title": "", "text": "the Agency’s business needs and accessibility standards. Defs.’ Mot. Ex. 4 ¶ 22. Defendants thus appear to be asserting that Windows 7 constitutes a reasonable accommodation. Plaintiff responds that, on the present record, he lacks a basis to evaluate whether Windows 7 constitutes a reasonable accommodation. Pl.’s Opp’n at 16-17. Therefore, Plaintiff seeks discovery into what programs other than Windows 7 have been considered and how these products were evaluated for accessibility. Id. As of the filing of Plaintiffs motion, the parties had not engaged in any formal discovery in this matter. Rather, in support of their motion, in the alternative, for summary judgment, Defendants appear to have relied entirely on materials produced during the EEO investigation as well as affidavits from Plaintiffs supervisors and coworkers. Other courts of this district, following D.C. Circuit precedent, have concluded that “[i]n general, summary judgment in Title VII cases should be avoided where discovery has not taken place.” Hicks v. Gotbaum, 828 F.Supp.2d 152, 159 (D.D.C.2011) (citing Ikossi v. Dep’t of Navy, 516 F.3d 1087, 1045 (D.C.Cir.2008)). The same logic would appear to apply to claims under the Rehabilitation Act where, as here, á plaintiff argues that discovery is necessary to assess whether an accommodation offered by a defendant is reasonable. Pursuant to Federal Rule of Civil Procedure 56(d), a court may deny a motion for summary judgment, order discovery, or “issue any other appropriate order” if the nonmoving party “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). The affidavit or declaration “cannot be a generalized, speculative request to conduct discovery but must demonstrate that further specified discovery will defeat a summary judgment motion,” Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27, 35 (D.D.C.2010) (quoting Maduforo v. Urban Serv. Sys. Corp., No. 09-0287, 2009 WL 2378743, at *1.(D.D.C. July 31, 2009)), and “show what facts [the nonmoving party] intend[s] to discover that would create a triable issue and why he could not produce them in opposition to the motion.” Byrd v. E.P.A., 174 F.3d 239, 248 n. 8 (D.C.Cir.1999). Here," }, { "docid": "4839833", "title": "", "text": "time for discovery.” 477 U.S. at 322, 106 S.Ct. 2548. Indeed, on summary judgment, the non-moving party is relieved of its burden to set forth facts showing there is a genuine issue for trial when it “shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]” Fed. R. Civ. P. 56(f); see also Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. 2505 (“[The] requirement [that a nonmoving party set forth material facts] in turn is qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”). An inability to access facts material to one’s case will naturally be remedied by providing the nonmoving party additional time to conduct discovery. Rule 56(f) recognizes this, and “provides for the more just adjudication of disputes by ensuring that parties are not ‘railroaded’ by a premature motion for summary judgment.’ ” Croker v. Applica Consumer Prods., Inc., No. Civ. 05-3054, 2006 WL 626425 at *3 (D.N.J. Mar. 10, 2006) (citing Celotex, 477 U.S. at 326, 106 S.Ct. 2548). Whether a court should grant a Rule 56(f) motion and defer ruling on a summary judgment motion “depends, in part, on what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.” Contractors Ass’n of E. Pa., Inc. v. City of Phila., 945 F.2d 1260, 1266 (3d Cir.1991) (internal citations and quotations omitted). Courts will deny litigants the opportunity to conduct additional discovery where “the discovery sought appears irrelevant to the issues to be adjudicated or if it is merely cumulative” or the party seeking to delay summary judgment relies only on “a ‘hope’ or ‘hunch’ that evidence creating an issue of fact will emerge at trial.” 10B Wright & Miller, Federal Practice and Procedure 3rd Ed. § 2741. III. DISCUSSION A. Whether the Treasury’s Motion for Summary Judgment Is Premature Mr. Boandl argues the defendant’s motion is premature, claiming essentially that the administrative record created as a result of Mr. Boandl’s" }, { "docid": "11786662", "title": "", "text": "the paycheck claim, the district court concluded that “receiving a single paycheck in the form of a paper check, rather than by direct deposit,” would not be sufficient to “deter a person of ordinary firmness” from exercising First Amendment rights. Cannon, 873 F.Supp.2d at 286-87 (quoting Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 585 (D.C.Cir.2002)). On appeal, the plaintiffs do not contest this conclusion. They argue instead that summary judgment was improper because a jury should have determined the District’s intent in issuing the paper paychecks. But the question of retaliatory intent was rendered irrelevant by the court’s holding that the District’s use of a paper paycheck in the place of direct deposit would not deter the exercise of First Amendment rights. The plaintiffs’ challenge fails. As to Cannon’s firing, the District produced documentary evidence and an affidavit demonstrating that the director of the Department of Human Resources approved the firing on January 18, 2012, before the plaintiffs filed suit and for unrelated reasons. The district court therefore held that the plaintiffs could not establish that the lawsuit “was a substantial or motivating factor” in Cannon’s firing. Id. at 285 (quoting Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007)). The plaintiffs claim they needed additional discovery to demonstrate that the District’s documentary evidence about Cannon’s firing was fraudulent. They contend that the district court abused its discretion by failing to stay its summary judgment while the plaintiffs pursued that theory. See Fed.R.Civ.P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; [or] (2) allow time to obtain affidavits or declarations or to take discovery....”). The plaintiffs, however, failed to comply with the requirements of Rule 56(d). “To obtain [Rule 56(d) ] relief, the movant must submit an affidavit which states with sufficient particularity why additional discovery is necessary.” Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C.Cir.2012) (citation omitted). The affidavit must satisfy three criteria. First, it must outline the particular facts [the" }, { "docid": "1659269", "title": "", "text": "is duly prepared and who is in a position to answer questions, at least on the groups of questions Nos. 6 and 7 in the Notice of the Deposition.\" ECF No. 76 at 19. They also asked this Court to order SunTrust to supplement its discovery under Federal Rule of Civil Procedure 26(e), which requires parties to provide additional discovery upon learning that its previous disclosures were \"incomplete or incorrect\" \"in some material respect.\" Specifically, Trudel and Ruslan asked the Court to compel Defendant to (1) supplement, remove redactions, or provide a privilege log with respect to SunTrust's retention policy, and (2) produce extracts from its in-house technical operating instructions for archiving and deleting data regarding accounts. See Pl. Mot. to Compel at 19 While that Motion was pending, SunTrust moved for summary judgment, and Plaintiffs responded with the instant Rule 56(d) Motion, asking the Court to put the proceedings on ice until the Bank complied with their additional discovery requests. The Court turns now to that Motion. 2. Rule 56(d) Motion Under Rule 56(d), a court may defer considering a motion for summary judgment, deny the motion, or allow time for the non-movant to obtain affidavits or declarations or to take discovery if that party \"shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.\" Such an affidavit must state \"with sufficient particularity why additional discovery is necessary.\" United States ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (citation and internal quotation marks omitted). Specifically, the non-movant's affidavit must: (1) \"outline the particular facts the non-movant intends to discover and describe why those facts are necessary to the litigation,\" (2) \"explain why the non-movant could not produce the facts in opposition to the motion for summary judgment,\" and (3) \"show the information is in fact discoverable.\" Id. (citations and internal quotation marks omitted). The Court concludes that Plaintiffs fail on the first prong. Although they allege a bevy of discovery deficiencies, they cannot show why any of those missing facts are \"necessary\" to the litigation." }, { "docid": "19536339", "title": "", "text": "court must defer ruling on a summary-judgment motion if the party opposing the motion \"shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.\" Fed. R. Civ. P. 56(d). The rule \"mandates that summary judgment be [postponed] when the nonmovant 'has not had the opportunity to discover information that is essential to his opposition.' \" Pisano v. Strach , 743 F.3d 927, 931 (4th Cir. 2014) (quoting Ingle ex rel. Estate of Ingle v. Yelton , 439 F.3d 191, 195 (4th Cir. 2006) ). However, a court may deny a Rule 56(d) motion \"when the information sought would not by itself create a genuine issue of material fact sufficient for the nonmovant to survive summary judgment.\" Id. \"We review a district court's denial of a Rule 56(d) motion for abuse of discretion.\" Id. In this case, the district court did not abuse its discretion by denying Plaintiffs' Rule 56(d) motion for two reasons. First, Plaintiffs had a reasonable opportunity to depose UTC and Honeywell regarding the nature of their relationship with VMS and ISI. Plaintiffs' Rule 56(d) declaration acknowledged that they had deposed both defendants at an earlier stage of discovery. Moreover, Plaintiffs had three months between the district court's order lifting the stay in the consolidated case and the deadline for their opposition to UTC's and Honeywell's summary-judgment motions. This gap provided Plaintiffs with a reasonable amount of time to schedule the depositions they claim were essential to their responses. Plaintiffs do not offer a persuasive explanation for failing to do so. Instead, Plaintiffs argue that they were not obligated to schedule any depositions during the relevant three-month period because, according to the district court's latest scheduling order, discovery would not close until April 28, 2017-several months after their opposition was due. This argument misunderstands the Rule 56(d) inquiry. The Federal Rules of Civil Procedure allow a party to move for summary judgment before the end of discovery. Fed. R. Civ. P. 56(b) (\"[A] party may file a motion for summary judgment at any time until 30 days after the close" }, { "docid": "19194335", "title": "", "text": "status conference. The Court allowed briefing to continue on Shea’s motions for reconsideration and application of judicial estoppel, but discovery deadlines remained in abeyance. Only after the Court denied plaintiffs motions — on July 30, 2012 — did the Court lift the stay and set a schedule for completing dispositive motions. See Mem. Op. & Order Denying Pl.’s Mots. Reconsideration; Mem. & Order Denying Pl.’s Mot. Judicial Estop-pel. State is also not responsible for these “delays.” It is easy to say, “This case has gone on for ten years, why didn’t State discover its mitigation defense sooner?” But that would ignore why this ease has dragged on for a decade. Some of it was attributable to Ledbetter, some to an abeyance requested by the plaintiff (and stays imposed by the Court). Shea claims that he would be prejudiced if State amended its Answer. Pl.’s Opp’n to Def.’s Mot. Am. 10-15. “To show prejudice, the non-movant must show unfairness in procedure or timing preventing the non-movant from properly responding[.]” In re Vitamins, 217 F.R.D. at 32. The plaintiff does not explain why — in addition to raising technical objections to State’s mitigation defense — he could not have responded substantively when opposing State’s latest motion for summary judgment. The plaintiff does not specify what additional discovery he needs to respond properly to State’s mitigation defense. The plaintiff also does not make clear why the Court needs to disallow amendment in order to avoid prejudice. State raises the mitigation issue in its latest summary judgment motion. Def.’s Second Mot. Summ. J. 34-36. Rule 56(d) provides: If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) Defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed.R.Civ.P. 56(d). If Shea cannot respond to State’s mitigation defense without additional discovery, the preferred course would be to defer consideration of State’s motion until Shea could obtain such discovery. The Court should not take the" }, { "docid": "4145129", "title": "", "text": "return a verdict for that party.” Id. at 249, 106 S.Ct. 2505 (citation omitted). “A nonmoving party’s failure of proof concerning the existence of an element essential to its case on which the nonmoving party will bear the burden of proof at trial necessarily renders all other facts immaterial and entitles the moving party to summary judgment as a matter of law.” Dairyland, 16 F.3d at 1202 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). III. Standard of Review for Requests for Discovery Under RCFC 56(d) RCFC 56(d) governs discovery afforded to a party opposing a summary judgment motion: When Facts Are Unavailable to the Non-movant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. RCFC 56(d). The nonmovant will generally be given a chance to conduct discovery that is reasonably directed to obtaining facts essential to its case. Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 852 (Fed.Cir.1992) (citations omitted); see Dunkin’ Donuts of Am., Inc. v. Metallurgical Exoproducts Corp., 840 F.2d 917, 919 (Fed.Cir.1988) (vacating a grant of summary judgment because no opportunity for the discovery of pertinent facts was afforded the nonmovant). If a continuance is granted under this rule, the court must ensure that the nonmovant has “adequate time for discovery.” Dunkin’ Donuts, 840 F.2d at 919 (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). The opportunity provided by RCFC 56(d) to conduct discovery while resisting summary judgment is not unlimited, however. Rule 56(d) “provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 265, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The non-moving party will not be allowed to conduct discovery that has no chance of leading to the denial of summary judgment for the movant. See" }, { "docid": "11623393", "title": "", "text": "first discuss the court’s failure to consider the declaration Shelton’s attorney filed under Fed. R. Civ. P. 56(d) in opposition to summary judgment. A. Rule 56(d) As we noted earlier, Shelton’s opposition to the defendants’ motion for summary judgment included a declaration that his counsel submitted pursuant to Rule 56(d). According to that declaration, Shelton needed discovery in order to properly respond to the defendants’ summary judgment motion. “[I]t is well established that a court ‘is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery.’ ” Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir.2007) (quoting Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir.1988)). Rule 56(d) states that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). Defendants rely on the non-precedential decision in Superior Offshore International, Inc. v. Bristow Group, Inc., 490 Fed.Appx. 492, 501 (3d Cir.2012), to argue that Shelton was required to file a “motion” in order to seek relief under Rule 56(d). The panel in Superior Offshore did state that “[a] Rule 56(d) motion is the proper recourse of a party faced with a motion for summary judgment who believes that additional discovery is necessary before he can adequately respond to that motion.” Id. (citation and internal quotation marks omitted). We have previously referred to items filed under Rule 56(d) as “motions.” See Murphy, 650 F.3d at 309-10. More pointedly, the panel in Doe v. Abington Friends School explained that, in responding to a motion for summary judgment, “if the non-moving party believes that additional discovery is necessary, the proper course is to file a motion_” 480 F.3d at 257. However, we do not interpret these statements or our opinions in Murphy or Doe as actually requiring that an opposition under Rule 56(d) be registered in a motion to the court. The" }, { "docid": "10135327", "title": "", "text": "a district court may permit additional time for discovery if “a nonmovant shows by - affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” That declaration must specify “(1) the probable facts not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable [the party] to obtain those facts and rebut the motion for summary judgment.” Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir.2010) (alteration in original) (internal quotation marks omitted). “We expect Rule 56(d) motions to be robust, and we have observed that ‘[an] affidavit’s lack of specificity’ counsels against a finding that the district court abused its discretion in denying a request for additional discovery under the rule.” Ellis, 779 F.3d at 1206 (alteration in original). The magistrate judge found Appellants had “fail[ed] to establish good cause and excusable neglect in support of re-opening discovery.” Aplt.App., Vol. 2 at 534-35. He therefore denied the motion “for the reasons specifically set forth ... in connection with [Appellants’] motion for amendment.” Id. at 535. The district court concluded Appellants were not entitled to Rule 56(d) relief because they had not submitted a sufficiently detailed affidavit. “[F]or that reason and those set forth in [the magistrate judge’s] memorandum decision,” the district court overruled Appellants’ objections regarding the motion for additional discovery. Aplt. Br. Attach. 3 at 66:25-67:3. We find no abuse of discretion in this ruling. Appellants’ motion for additional discovery incorporated by reference two declarations they had filed with a previous discovery motion. In one of those declarations, attorney Brad Bearnson attested that it was not until April 7, 2014, that Polaris produced “[ROPS] design records” and “documents relating to the [ROPS] design” that Appellants had requested “several times.” Aplt-App., Vol. 2 at 375. Because of Polaris’s alleged stonewalling, Bearnson asserted, Appellants did not discover until the June 26, 2014 disassembly that “the [ROPS] in question was in actuality a 2008 Polaris roll cage.” Id. at 377. The relevant" }, { "docid": "20398260", "title": "", "text": "Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C.Cir.1999); see also Berkeley, 68 F.3d at 1414 (“Notwithstanding the usual generous approach toward granting Rule 56(f) motions, the rule is not properly invoked to relieve counsel’s lack of diligence.”); Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.1992) (“[T]he trial court need not aid [a party] who ha[s] occasioned [its] own predicament through sloth.”). Third, it must show the information is in fact discoverable. Messina v. Krakower, 439 F.3d 755, 762 (D.C.Cir.2006) (“We will not find an abuse of discretion where the requesting party has offered only a conclusory assertion without any supporting facts to justify the proposition that the discovery sought will produce the evidence required.” (internal quotation marks omitted)). Convertino easily satisfied the first two Rule 56(f) criteria. In opposition to DOJ’s summary judgment motion, Convertino submitted the affidavit of his counsel, who outlined the particular facts Convertino hoped to discover and why those facts were necessary to his claim. See Kohn Aff. at 2, Convertino, No. 1:04-cv-00236 (D.D.C. Oct. 18, 2010) (Kohn Affidavit) (“[Kjnowledge of the identity of Mr. Ashenfelter’s source for the Article is essential to every element of Mr. Convertino’s Privacy Act claim against Defendant DOJ.”). Convertino’s counsel also described why Convertino “could not produce [the facts] in opposition to the [DOJ’s] motion [for summary judgment],” Carpenter, 174 F.3d at 237, to wit: although the reporter knew the identity of his source, the Eastern District had sustained the reporter’s Fifth Amendment assertion, requiring Convertino to again seek discovery from the Free Press. See Kohn Affidavit at 4-5. Convertino’s counsel also set forth Convertino’s extensive efforts to obtain the identity of the DOJ leaker. See id. In fact, the district court here described his efforts in the Eastern District as “monumental.” Convertino, 769 F.Supp.2d at 144. Convertino’s failure to discover the source’s identity, then, was plainly not the product of a “lack of diligence,” Berkeley, 68 F.3d at 1414, or “sloth,” Wichita Falls, 978 F.2d at 919. The remaining issue is whether the information can in fact be obtained through additional discovery." }, { "docid": "20324446", "title": "", "text": "the denial of the previous request, McNally has submitted two more requests to continue the hearing on the motions. See ECF Nos. 70 and 92. Rule 56(d) of the Federal Rules of Civil Procedure (formerly Rule 56(f)), allows this court to defer consideration of a motion for summary judgment, allow time to obtain affidavits or declarations or to take discovery, or issue any other appropriate order whenever a “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” The comments to the 2010 amendments to Rule 56 indicate that “Subdivision (d) carries forward without substantial change the provisions of the former subdivision (f).” This court therefore applies case law concerning former Rule 56(f) to the present motion. As the party requesting the continuance, McNally bears the burden of (1) filing a timely application that specifically identifies relevant information; (2) demonstrating that there is some basis to believe that the information sought exists; and (3) establishing that such information is essential to resist the summary judgment motion. See Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir.2004) (citation omitted); accord Moss v. U.S. Secret Serv., 572 F.3d 962, 966 n. 3 (9th Cir.2009) (noting that Rule 56(f) requires a party to show how additional discovery would preclude summary judgment and why the party cannot immediately provide specific facts demonstrating a genuine issue of material fact). McNally failed to diligently pursue the requested discovery. See Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1005 (9th Cir.2002) (“The failure to conduct discovery diligently is grounds for the denial of a Rule 56(f) motion.”); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir.1997) (no abuse of discretion when district court denied Rule 56(f) continuance for lack of diligence in taking discovery); Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir.1995) (“the district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past”); Richardson v. City & County of Honolulu, 759 F.Supp." }, { "docid": "3012067", "title": "", "text": "(D.C.Cir.2006) (“We view the evidence in the light most favorable to' the nonmoving party and . draw all inferences in its favor.”). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial, See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-movant “is required to provide evidence that would permit a reasonable jury to find [in his favor].” Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). III. ANALYSIS A. ' Plaintiffs Request For Discovery Pursuant To Federal Rule Of Civil Procedure 56(d) And Defendant’s ■ Motion, In The Alternative, For Summary Judgment Plaintiff argues that summary judgment is not appropriate at this stage of the case because the parties have not engaged in discovery, and because the discovery period ..at the EEOC was inadequate: Ms. Vick has not had an opportunity, to conduct discovery at the district court level and was denied the chance to discover information essential to her opposition before the. EEOC.. Prior to obtaining legal representation, Ms. Vick submitted requests for the production of documents to [Defendant], but [Defendant] refused to respond to her requests, and she did not obtain any of the requested information, which is essential to her claims. (Opp’n at 41). Plaintiff also lists nine specific discovery requests that she intends to propound on Defendant, and explains why the documents and information sought in these requests are essential to her claims. (See id. at 41-42). Plaintiff also provides a declaration to the same effect (see id. Ex. I), and asserts that she would be severely prejudiced by the issuance of summary judgment before discovery. (Id. at 42-43). Surprisingly, Defendant does not address this argument at all in its Reply. Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may," }, { "docid": "18482205", "title": "", "text": "same logic would appear to apply to claims under the Rehabilitation Act where, as here, á plaintiff argues that discovery is necessary to assess whether an accommodation offered by a defendant is reasonable. Pursuant to Federal Rule of Civil Procedure 56(d), a court may deny a motion for summary judgment, order discovery, or “issue any other appropriate order” if the nonmoving party “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). The affidavit or declaration “cannot be a generalized, speculative request to conduct discovery but must demonstrate that further specified discovery will defeat a summary judgment motion,” Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27, 35 (D.D.C.2010) (quoting Maduforo v. Urban Serv. Sys. Corp., No. 09-0287, 2009 WL 2378743, at *1.(D.D.C. July 31, 2009)), and “show what facts [the nonmoving party] intend[s] to discover that would create a triable issue and why he could not produce them in opposition to the motion.” Byrd v. E.P.A., 174 F.3d 239, 248 n. 8 (D.C.Cir.1999). Here, Plaintiff has included with his Opposition a declaration stating, inter alia, that “[wjithout discovery I can’t respond to CBP’s claim that non-508 compliant software “best meets” the government’s needs.... ” Pl.’s Opp’n, Ex. 3 ¶ 13. Although Plaintiffs statement is brief, the Court concludes that he does satisfy the standard for Rule 56(d), albeit barely. If through discovery Plaintiff is able to find evidence that other programs were considered that were more accessible to blind users than Windows 7, such evidence would undercut Defendants’ argument that Windows 7 is a reasonable accommodation here. In addition, Defendants fail to respond to Plaintiffs request for discovery, and thus provide no reason for the Court to deny the request. Accordingly, the Court will deny summary judgment as to Plaintiffs failure accommodate claim relating to his office computer, permitting the parties to engage in further discovery in this matter. 5. Plaintiffs Office Telephone Plaintiff also contends that his office telephone is inaccessible. Specifically, the telephone’s caller ID function is entirely visual, as is its voicemail message indicator. Pl.’s Opp’n," }, { "docid": "20472017", "title": "", "text": "timepoint, it cannot present by affidavit facts needed to defeat the motion.” Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir.1989); Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, (D.C.Cir.1981). “[T]he purpose of Rule 56(f) is to prevent ‘railroading’ the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery.” Dickens v. Whole Foods Market Group, Inc., 2003 WL 21486821, at *2 n. 5 (D.D.C. Mar.18, 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Whether the circumstances warrant a continuance to permit discovery is a decision that falls within the discretion of the district court. Stella v. Mineta, 284 F.3d 135, 147 (D.C.Cir.2002) A non-moving party seeking the protection of Rule 56(f) “must state by affidavit the reasons why he is unable to present the necessary opposing material.” Cloverleaf Standardbred Owners Ass’n, Inc. v. Nat’l Bank of Wash., 699 F.2d 1274, 1278 n. 6 (D.C.Cir.1983); see also Hotel & Rest. Employees Union, Local 25 v. Attorney Gen., 804 F.2d 1256, 1269 (D.C.Cir.1986) (noting that this affidavit requirement helps “prevent fishing expeditions”), vacated on other grounds, 808 F.2d 847 (D.C.Cir.1987). The non-moving party bears the burden of identifying the facts to be discovered that would create a triable issue and the reasons why the party cannot produce those facts in opposition to the motion. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 248 n. 8 (D.C.Cir. 1999). The non-moving party must show a reasonable basis to suggest that discovery would reveal triable issues of fact. Carpenter v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231, 237 (D.C.Cir.1999). “It is well settled that conclusory allegations unsupported by factual data will not create a triable issue of fact.” Byrd, 174 F.3d at 248 n. 8 (internal citations omitted); see also Exxon Corp. v. Crosby-Miss. Res., Ltd., 40 F.3d 1474, 1488 (5th Cir.1995) (holding that Rule 56(f) may not defeat summary judgment “where the result of a continuance to obtain further information would be wholly speculative”). C. The Court Denies" }, { "docid": "11786663", "title": "", "text": "establish that the lawsuit “was a substantial or motivating factor” in Cannon’s firing. Id. at 285 (quoting Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007)). The plaintiffs claim they needed additional discovery to demonstrate that the District’s documentary evidence about Cannon’s firing was fraudulent. They contend that the district court abused its discretion by failing to stay its summary judgment while the plaintiffs pursued that theory. See Fed.R.Civ.P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; [or] (2) allow time to obtain affidavits or declarations or to take discovery....”). The plaintiffs, however, failed to comply with the requirements of Rule 56(d). “To obtain [Rule 56(d) ] relief, the movant must submit an affidavit which states with sufficient particularity why additional discovery is necessary.” Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C.Cir.2012) (citation omitted). The affidavit must satisfy three criteria. First, it must outline the particular facts [the movant] intends to discover and describe why those facts are necessary to the litigation. Second, it must explain why [the movant] could not produce the facts in opposition to the motion for summary judgment. Third, it must show the information is in fact discoverable. Id. at 99-100 (internal quotation marks and citations omitted). The plaintiffs submitted no Rule 56(d) affidavit, nor did they make any of the required representations discussed in Convertino. The district court did not abuse its discretion in deciding the District’s summary judgment motion on the record before it. IV We affirm the district court’s judgment on the constitutional claims, but reverse and remand as to the claim under the FLSA. Because the district court’s decision not to exercise supplemental jurisdiction over the plaintiffs’ D.C. law claims was premised on the dismissal of all federal claims from this case, see Cannon, 873 F.Supp.2d at 287-88, we vacate that part of the district court’s order dismissing the D.C. law claims and remand for further proceedings. So ordered. . The employer must also demonstrate" }, { "docid": "10135326", "title": "", "text": "provide a record sufficient for considering that issue, the court may decline to consider it.”); Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1149 n. 11 (10th Cir.2007) (“Where the record is insufficient to permit review we must affirm.” (quotation omitted)); Phillips v. James, 422 F.3d 1075, 1081 (10th Cir.2005) (explaining that “we will not sift through the record to find support” for propositions to which a party does not adequately cite us); Tesh v. U.S. Postal Serv., 349 F.3d 1270, 1272 (10th Cir.2003) (“It is obligatory that an appellant, claiming error by the district court as to factual determinations, provide this court with the essential references to the record to carry his burden of proving error.” (quotation omitted)). C. Denial of Motion for Additional Discovery 1. Standard of Review We “review ... the district court’s denial of deferment for expanded discovery pursuant to Rule 56(d) ... for an abuse of discretion.” Ellis v. J.R. ’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir.2015). 2. Analysis Under Federal Rule of Civil Procedure 56(d), a district court may permit additional time for discovery if “a nonmovant shows by - affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” That declaration must specify “(1) the probable facts not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable [the party] to obtain those facts and rebut the motion for summary judgment.” Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir.2010) (alteration in original) (internal quotation marks omitted). “We expect Rule 56(d) motions to be robust, and we have observed that ‘[an] affidavit’s lack of specificity’ counsels against a finding that the district court abused its discretion in denying a request for additional discovery under the rule.” Ellis, 779 F.3d at 1206 (alteration in original). The magistrate judge found Appellants had “fail[ed] to establish good cause and excusable neglect in support of re-opening discovery.” Aplt.App., Vol. 2 at 534-35. He therefore" }, { "docid": "2788353", "title": "", "text": "887, 894 (5th Cir.2013). Rule 56(d) provides: If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Rule 56(d) motions are “broadly favored and should be liberally granted.” Roby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). The Rule 56(d) movant “must set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.” Id. (quoting C.B. Trucking, Inc. v. Waste Mgmt. Inc., 137 F.3d 41, 44 (1st Cir.1998)). If the requesting party “has not diligently pursued discovery, however, she is not entitled to relief’ under Rule 56(d). Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir.2001). The MDL court “acted within its discretion in concluding that [the McKays] had not pursued discovery diligently enough to warrant relief under” Rule 56(d). Beattie, 254 F.3d at 606. McKay did not need formal discovery to request his own medical records; therefore, it is of no moment that discovery was stayed at the time of summary judgment. See, e.g., St. Bernard Parish v. Lafarge N. Am., Inc., 550 Fed.Appx. 184, 187-88 (5th Cir. 2013) (unpublished) (“The discovery needed by the Parish — its own final expert testimony — was not dependent on the defendant but rather facts and reports completely within its control-.”). The fact that the McKays sought formal discovery of evidence that was available to them through informal means is what distinguishes this case from Xerox Corp. v. Genmoora Corp., where the evidence requested was in the hands of the opposing party. 888 F.2d 345, 354 (5th Cir.1989) (noting that the requested discovery “must come largely, if not entirely, from the ex-directors”). Moreover, McKay filed this suit in 2006, and Novartis did not move for summary judgment until 2008. This" }, { "docid": "8520207", "title": "", "text": "Rule 56(f) motion for an abuse of discretion. Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000). Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit specific facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. A party seeking to defer a ruling on summary judgment under Rule 56(f) must file an affidavit that “explain[s] why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts.” Comm, for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992) (citation omitted). “[T]he nonmovant must also explain how additional time will enable him to rebut the movant’s allegations of no genuine issue of material fact.” Id. We have noted that a summary judgment mov-ant’s exclusive control of information “is a factor favoring relief under Rule 56(f).” Price, 232 F.3d at 784. The Rule 56(f) affidavit of Ms. Bliss and Mr. Trask neither identifies any “probable facts not available,” Campbell, 962 F.2d at 1522, nor “state[s] with specificity how the additional material will rebut the summary judgment motion,” Ben Ezra, Weinstein & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir.2000). The affidavit does note that certain records and procedures manuals sought for discovery are under the control of the probation officers and their employer, but “[exclusive control does not ... require automatic relief under Rule 56(f).” Price, 232 F.3d at 784 (internal quotation marks omitted). Based on the affidavit’s lack of specificity, the district court did not abuse its discretion in denying the request for additional discovery. B. Unreasonable search claim Ms. Bliss and Mr. Trask claim that the probation officers unreasonably searched their residence, in violation of the Fourth and Fourteenth Amendments. Both were living in" } ]

[ { "docid": "16080376", "title": "", "text": "times and in related markets that the development of his business might naturally take him. Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970); Yale Electric Corf. v. Robertson, 26 F.2d 972 (2d Cir. 1928); McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268 (S.D.N.Y.1986). The extent to which he may protect this interest relates directly to the strength of his mark. While one mark may not enjoy the strength of identity to preclude use of a junior mark in a related field or neighboring market, another may enjoy such recognition that confusion might result outside his own field or beyond the markets in which he does business. See, e.g. Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117 (9th Cir.), cert. denied, 391 U.S. 966, 88 S.Ct. 2037, 20 L.Ed.2d 879 (1968) (beer vs. scotch); Cook Chemical Co. v. Cook Paint & Varnish Co., 185 F.2d 365 (8th Cir.1950) (paint vs. insecticide); Carling Brewing Co., Inc. v. Philip Morris, Inc., 277 F.Supp. 326 (N.D.Ga.1967) (beer vs. tobacco); Esquire, Inc. v. Maira, 101 F.Supp. 398 (M.D.Pa.1951) (magazine vs. clothing store). The measurement of this strength is revealed by evidence demonstrating a likelihood of confusion. The relationship of these two factors, strength and confusion, operates such that evidence of strength of a mark is perhaps the most significant factor in predicting the likelihood of confusion. On the other hand, evidence of the likelihood of confusion in a related field or neighboring market, or even in a competitive market, defines the scope of a mark’s enforcement and therefore is the measurement of its strength. Variations on the weight of evidence on these two aspects, i.e., the strength of the mark and the likelihood of confusion, will determine whether one mark will preclude the use of a later adopted and used mark. Accordingly, a mark may enjoy such strength that it may be enforced in related fields or neighboring markets, whether they are product markets or territorial markets. Or, stated obversely, the likelihood of confusion in related fields or" } ]

[ { "docid": "14256461", "title": "", "text": "does not use UTLM’s trademark, and a searcher must click through a website that does not resemble the UTLM website in order to reach FAIR’S bookstore. The fifth factor is the degree of care typically exercised by purchasers of the products linked to the trademark. UTLM contends that its customers would exercise a reduced degree of care because books sold online are low-cost impulse purchases. However, one could also infer that potential customers of the UTLM bookstore are discerning and sophisticated about where they purchase books on controversial religious subjects. The district court concluded that the fifth factor was irrelevant to the likelihood of confusion analysis based on the difference between the Wyatt website and FAIR bookstore. As with the fourth factor, the absence of the UTLM trademark on the FAIR website or the FAIR bookstore lessens the chance that a consumer would be mislead into believing that she is visiting the UTLM online bookstore. Therefore, this factor does not weigh in favor of a finding of likelihood of confusion. The final factor in determining likelihood of confusion is the strength of the mark — “[t]he stronger the mark, the greater the likelihood that encroachment on the mark will cause confusion.” Sally Beauty Co., 304 F.3d at 975. Strength consists of both conceptual strength, which refers to the placement of the mark along the distinctiveness spectrum, and commercial strength, which refers to the marketplace recognition value of the mark. King of Mt. Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1093 (10th Cir.1999). UTLM did not submit any evidence to the district court of conceptual strength, and the district court determined that UTLM’s evidence of search engine hits did not demonstrate that the mark had significant recognition value in the marketplace. The evidence present in the record suggests that the commercial strength factor weighs against a finding of confusion. Even if we consider the arguments for conceptual strength, which were made for the first time on appeal, and thereby conclude that the mark is strong, that alone is insufficient to find a likelihood of confusion. A parody, of course, could" }, { "docid": "1318804", "title": "", "text": "Placid Oil Co., 932 F.2d 394, 398 (5th Cir.1991)). Thus, if, based on the undisputed facts in the summary judgment record, no reasonable jury could find a likelihood of confusion, summary judgment is appropriate. (i) The Strength or Distinctiveness of the Mark The Fourth Circuit has emphasized that the strength or distinctiveness of the mark is the “paramount factor” in determining likelihood of confusion. Pizzeria Uno, 747 F.2d at 1527. See also Lone Star, 43 F.3d at 933; Sara Lee, 81 F.3d at 467 (describing the strength of the mark as the “alpha of infringement analysis”). In evaluating the strength of a mark, it is useful to consider two separate categories of a mark’s strength: (1) conceptual strength: the placement of the mark along a spectrum focusing on the inherent potential distinctiveness of the term; and (2) commercial strength: the marketplace’s recognition as of the time the mark is asserted in litigation. Of these two considerations, the second is more important, because a conceptually weak but commer- dally strong mark can still gain protection through secondary meaning, as illustrated by such examples as AMERICAN Airlines, PAYLESS Drug Stores and KENTUCKY FRIED CHICKEN. See McCarthy on Trademarks § 11:83. On the other hand, a conceptually strong mark that is relatively unknown in the marketplace will not be likely to cause any confusion among consumers of other products. Id. To afford protection to marks simply on the basis of their conceptual distinctiveness would be contrary to the ultimate inquiry under this factor, namely, “the degree to which the designation is associated by prospective purchasers with a particular source.” Petro Stopping, 130 F.3d at 93 (quoting Estee Lauder, Inc. v. The Gap, Inc., 108 F.3d 1503, 1510 (2d Cir.1997)). Normally, the fact that the PTO has registered the trademark is persuasive evidence of a mark’s conceptual strength because the PTO registers only fanciful, arbitrary or suggestive marks, or descriptive marks shown to have acquired secondary meaning. Lone Star, 43 F.3d at 934. Indeed, as described above, the word RENAISSANCE is “suggestive” as that term has been defined. However, the categories of distinctiveness are" }, { "docid": "23107125", "title": "", "text": "represent the same ... shall be liable to a civil action by ... any person who believes that he is or is likely to be damaged by the use of any such false description or representation. The “ultimate test” for unfair competition is exactly the same as for trademark infringement: “whether the public is likely to be deceived or confused by the similarity of the marks.” New West Corp. v. NYM Co. of California, 595 F.2d 1194, 1201 (9th Cir.1979) (citations omitted). B. Analysis of the J.B. Williams Test. The test for determining likelihood of confusion, as articulated in J.B. Williams, 523 F.2d at 191, requires consideration of six factors: 1) the strength or weakness of the marks; 2) similarity in appearance, sound, and meaning; 3) the class of goods in question; 4) the marketing channels; 5) evidence of actual confusion; and 6) evidence of the intention of defendant in selecting and using the alleged infringing name. Analyzing the undisputed facts before it according to the J.B. Williams test, the district court concluded that Sandlin’s use of the word “Century” and his yard sign created a likelihood of confusion for the public. A trial court’s determination of the likelihood of confusion is reviewed by this and most other circuits under the “clearly erroneous” standard. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1355-56 (9th Cir.1985). The district court’s conclusion was not “clearly erroneous”, since evidence for each of the six factors points to a likelihood of confusion. 1)Strength of the mark. “A ‘strong’ mark is one which is used only in a ‘fictitious, arbitrary and fanciful manner’, whereas a ‘weak’ mark is a mark that is a meaningful word in common usage, or is merely a suggestive or descriptive trademark.” J.B. Williams, 523 F.2d at 192 (citations omitted). Marks may be strengthened by extensive advertising, length of time in business, public recognition, and uniqueness. Evidence of the strength of Century 21’s mark includes the fact that it has expended several million dollars in advertising real estate services rendered in connection with the “Century 21” mark, and that" }, { "docid": "13325160", "title": "", "text": "is arbitrary, if it is used only in a narrow area, others may use a similar mark for different goods without any trademark infringement. See McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1170-71 (7th Cir.1986). We can assume that Sullivan’s mark is entitled to strong protection as against other band names, but there is no presumption that his mark is equally strong outside that realm. This case turns, in our view, on Sullivan’s failure to submit enough evidence on the likelihood of confusion point to survive summary judgment. Sullivan had to submit evidence that, if believed by a trier of fact, would show that consumers are likely to be confused as to the source of the CDs and merchandise at issue. In assessing the likelihood of confusion, courts have identified seven relevant factors that help in deciding the ultimate question: (1) the similarity of the marks; (2) the similarity of the products; (3) the area and manner of concurrent use; (4) the degree of care likely to be used by consumers; (5) the strength of the plaintiffs mark; (6) whether any actual confusion exists; and (7) the defendant’s intent to palm off its goods as those of the plaintiff. Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir.2002). The district court found that similarity of the marks, similarity of the products, degree of care, strength of mark, actual confusion, and intent all favored CBS. Area and manner of concurrent use favored Sullivan. We begin by considering the strength of Sullivan’s mark. Sullivan contends that because “Survivor” is arbitrary as a band name, it is entitled automatically to wide protection in any field as against any competitor. The law draws finer lines than this. A mark can be arbitrary for one purpose but it may still be used extensively in other areas. As applied to Sullivan, this means that he might enjoy strong protection for his mark as against other aspiring rock bands or musical groups, but that he would have only weak or nonexistent protection outside that particular niche. See Source Services Corp. v. Source" }, { "docid": "9785810", "title": "", "text": "v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 443 (9th Cir.1980). To determine whether a likelihood of confusion existed in this case, the district court applied the six-factor test laid out in J.B. Williams, Co., Inc. v. Le Conte Cosmetics, Inc., 523 F.2d 187 (9th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1110, 47 L.Ed.2d 317 (1976). Those factors include: (1) the strength of the mark; (2) similarity in appearance, sound and meaning; (3) the class of goods; (4) the marketing channels involved; (5) evidence of actual confusion; and (6) the defendant’s intent in selecting the mark. Id. at 191. We consider each factor in turn. (1)Strength of the mark A strong mark is “afforded the widest ambit of protection from infringing uses.” AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 349 (9th Cir.1979). The district court correctly ruled that the Oscar could be considered “a relatively strong mark because it enjoys recognition among many members of our society,” but then stated that this factor “must be considered in conjunction with the factor of likelihood of confusion.” By linking the sub-issue of mark strength with the overriding issue of likelihood of confusion, the district court improperly collapsed a single threshold factor into the ultimate question to be determined. See J.B. Williams, 523 F.2d at 192 (linking a threshold question such as mark strength with the issue of “confusing similarity” or “likelihood of confusion” is improper because it merges analysis of one of the preliminary inquiries with the ultimate issue). The district court’s analysis of the Oscar mark’s strength was erroneous. The mark should be given the strongest possible protection against infringement. (2) Similarity in appearance The district court’s finding that the two awards “are very similar,” apart from the different objects they hold and two inches in height, is not clearly erroneous. Indeed, the similarity in design, shape and finish between the two statuettes is striking. (3) & (4) Class of goods and marketing channels The district court noted that both parties distribute similar goods. But the court concluded that the channels of distribution were “entirely different”" }, { "docid": "13458802", "title": "", "text": "Goods In this case, the marks are identical to the extent they contain various images of Princess Diana. Because Princess Diana is known throughout the world, the marks are strong. See Wendt, 125 F.3d at 812 n. 1 citing White, 971 F.2d at 1400 (“the strength of the mark refers to the level of recognition the celebrity enjoys”). Finally, defendants’ products are closely related to Princess Diana’s fame associated with her status as a member of Britain’s Royal Family, a fashion ideal and a well-known humanitarian worker. See White, 971 F.2d at 1400 (the “goods” in celebrity endorsement cases are “the reasons for or source of the plaintiffs fame”). Each of these factors in the traditional likelihood of confusion analysis would weigh in favor of finding a likelihood of confusion. In this case however, each is severely mitigated by the Court’s finding that there is a weak association between the image of Princess Diana and plaintiffs. If there is a lack of association between that image and plaintiffs, the similarity and strength of the marks are irrelevant to a likelihood of confusion as to endorsement. Similarly, the fact that goods are related is of no consequence without a showing of association between the image and the plaintiffs. The Court concludes that these factors have no bearing on the determination of whether consumers are likely to be confused as to plaintiffs’ endorsement of defendants’ products. Balancing The most important factor to this case: strength of association between the Marks and plaintiffs weighs heavily against finding a likelihood of confusion. Additionally, the high degree of care exercised by purchasers, lack of intent to imply endorsement and lack of a likelihood of expansion weigh against finding a likelihood of confusion. The strength of the mark, the relatedness of the goods, and the similarity of the marks are not considered in weighing the likelihood of confusion because each factor is undermined by the weak association between the image of Princes Diana and plaintiffs. Only the findings of minimal consumer confusion and convergent marketing channels weight in favor of finding a likelihood of confusion. At" }, { "docid": "9785809", "title": "", "text": "the public as to the product’s origin. To be protected under the Lanham Act, a particular design must be both non-functional and have a secondary meaning. Here, the Oscar’s sleek, muscular build and distinctive design is non-functional because an achievement award need not have those particular characteristics. The Oscar also has clearly acquired a secondary meaning — people throughout the world associate the award with excellence in film. Thus, the district court correctly concluded that the Oscar is entitled to protection under the Lanham Act. Under § 1125(a), “the ultimate test is whether the public is likely to be deceived or confused by the similarity of the marks.” New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1201 (9th Cir.1979). “) ikelihood of confusion exists when consumers are likely to assume that a product or service is associated with a source other than its actual source because of similarities between the two sources’ marks or marketing techniques.” Shakey’s Inc. v. Covalt, 704 F.2d 426, 431 (9th Cir.1983); see also Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 443 (9th Cir.1980). To determine whether a likelihood of confusion existed in this case, the district court applied the six-factor test laid out in J.B. Williams, Co., Inc. v. Le Conte Cosmetics, Inc., 523 F.2d 187 (9th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1110, 47 L.Ed.2d 317 (1976). Those factors include: (1) the strength of the mark; (2) similarity in appearance, sound and meaning; (3) the class of goods; (4) the marketing channels involved; (5) evidence of actual confusion; and (6) the defendant’s intent in selecting the mark. Id. at 191. We consider each factor in turn. (1)Strength of the mark A strong mark is “afforded the widest ambit of protection from infringing uses.” AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 349 (9th Cir.1979). The district court correctly ruled that the Oscar could be considered “a relatively strong mark because it enjoys recognition among many members of our society,” but then stated that this factor “must be considered in conjunction with the" }, { "docid": "11255922", "title": "", "text": "1527. Consequently, no one factor is dispositive on the determination of likelihood of confusion. See Perini Corp. v. Perini Constr. Inc., 915 F.2d 121, 127 (4th Cir.1990). Application of the controlling test to the facts shows that IDV has failed to establish by a preponderance of the evidence that the use of the trademark Bailey’s by S & M Brands is likely to confuse the ordinary consumer as to the source or sponsorship of goods. 1. Strength and Distinctiveness of the Senior Mark The strength or distinctiveness of the senior mark is perhaps the most litigated aspect of any trademark action. As explained in Section I, the plaintiffs mark has acquired a secondary meaning and is a strong, distinctive mark. However, that does not end the inquiry as to the strength and distinctiveness factor. A mark may be strong in the market in which it is used but weak in another market in which it is not used. 2 J. Thomas McCarthy, Trademarks and Unfair Competition § 11:77 (4th ed.1996). Indeed, the strength of a mark may be confined to the products with which it is usually associated. See Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 394 (2d Cir.1995); 3 McCarthy, supra at § 24:49 (“Although a mark may be strong enough to result in confusion on competitive goods, it may not be strong enough to extend the scope of protection to non-competitive goods.”). For those reasons, several decisions have made clear that a mark which is strong in its field is not as susceptible to confusion with an identical mark used in connection with a dissimilar, albeit somewhat related, field. 2 McCarthy, supra at § 11.77. Thus, to the extent that secondary meaning plays a role in assessing likelihood of confusion, the evidence here demonstrates that the senior mark, while having a secondary meaning, and therefore strength, with respect to the liqueur products with which it is principally identified, the senior mark is not imbued with that status with respect to an unrelated product, such as tobacco. The evidence relating to the similarity of the goods and" }, { "docid": "11414567", "title": "", "text": "likelihood of confusion between Newton and the TV Series character. We disagree. Mere possibility that a consumer may be misled by Appellees’ use of the name ‘Wood Newton” is not enough to establish a cause of action for unfair competition. In opposition to the motion for summary judgment, Newton faded to offer proof of a likelihood that customers may be confused as to the source or endorsement for the TV Series. We arrive at our conclusion by applying the following factors relevant to a determination of likelihood of confusion: “(1) strength of the plaintiffs mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; (8) likelihood of expansion of the product lines.” White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1400 (9th Cir.1992) (citing AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979)), cert. denied, — U.S. -, 113 S.Ct. 2443, 124 L.Ed.2d 660. Applying these factors, none of the evidence before the court on summary judgment supports a finding of likelihood of confusion in this case. First, “[i]n cases involving confusion over endorsement by a celebrity plaintiff, ‘mark’ means the celebrity’s personal and] ... [t]he ‘strength’ of the mark refers to the level of recognition the celebrity enjoys among members of society.” White, 971 F.2d at 1400 (citations omitted). Newton’s work is limited to writing songs for country/westem music and performing in certain Southern states. By his own declaration, he showed only that his name is known and recognized within the country/western music industry. Newton in no way showed name recognition broad enough to cover those viewers in all sections of the country to whom Appellees direct the TV Series and its advertisements. In the overall scheme of things, given the limited appeal of his work and considering the evidence before the court on summary judgment, Newton’s “mark” is not strong. Second, for evaluating the relatedness of the goods, Newton’s “goods” are “the reasons for or source of [his] fame.” Id. Newton’s fame" }, { "docid": "12286509", "title": "", "text": "extraordinarily vast, making it an extremely strong junior mark. Plaintiff has submitted numerous articles from various publications demonstrating the widespread recognition of the Playmakers television series, in particular within the NFL. ESPN has attested to the vast resources that have been spent advertising its dramatic series over the course of several months. The relative strength of the two marks is also relevant in the sense that a relatively strong junior mark in comparison to the senior mark will tend to lead to the swamping effect that is the concern of the “reverse confusion” analysis. Here, ESPN’s mark is far stronger than that of the LLC. There is therefore a likelihood that ESPN’s mark will overwhelm that of the LLC within (at least a portion of) the relevant market (professional football players and those aspiring to be). This is of course offset somewhat by the conceptual weakness of plaintiffs mark. Overall, the strength of mark factor weighs in only slightly in favor of a finding of likelihood of confusion. Plaintiffs mark is suggestive and therefore conceptually somewhat weak, yet is nonetheless deserving of some protection, and ESPN’s mark is exceptionally strong. 2. Proximity of the Services Provided Whether the parties’ services are related is extremely important — perhaps second only to similarity — and the Court places great weight on this factor. Related goods or services are those that, though not identical, are related in the minds of the consumers. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1363 (9th Cir.1985). Where the goods or services compete for sales with those of the senior user, there is more likely to be confusion if the marks are sufficiently similar. See e.g., Sleekcraft, 599 F.2d at 348. There may also be confusion where two products are sufficiently similar that consumers would think that one was sponsored by the other. See Triangle Publications, Inc. v. Rohrlich, 167 F.2d 969 (2d Cir.1948). The Court finds that the services provided by the two parties are not sufficiently similar to cause confusion. Plaintiff offers sports agency services to professional athletes, including football players. ESPN" }, { "docid": "9785811", "title": "", "text": "factor of likelihood of confusion.” By linking the sub-issue of mark strength with the overriding issue of likelihood of confusion, the district court improperly collapsed a single threshold factor into the ultimate question to be determined. See J.B. Williams, 523 F.2d at 192 (linking a threshold question such as mark strength with the issue of “confusing similarity” or “likelihood of confusion” is improper because it merges analysis of one of the preliminary inquiries with the ultimate issue). The district court’s analysis of the Oscar mark’s strength was erroneous. The mark should be given the strongest possible protection against infringement. (2) Similarity in appearance The district court’s finding that the two awards “are very similar,” apart from the different objects they hold and two inches in height, is not clearly erroneous. Indeed, the similarity in design, shape and finish between the two statuettes is striking. (3) & (4) Class of goods and marketing channels The district court noted that both parties distribute similar goods. But the court concluded that the channels of distribution were “entirely different” because the Academy presents the Oscar at its annual awards ceremony, while Creative House markets the Star Award either directly to corporate buyers or through distributors. In taking such a narrow view of the relevant markets, the district court erred in two respects. First, it ignored evidence that Creative House’s market extends to buyers in the entertainment field, and includes theater groups, cable television, and a film festival. Second, by considering only the initial purchasers of the Star Award as the relevant market, the court overlooked the risk of post-sale confusion. Post-sale confusion occurs when consumers view a product outside the context in which it is originally distributed and confuse it with another, similar product. Here, initial Star Award purchasers (such as corporations buying the award for their “star” employees) would be exposed to Creative House’s marketing presentations and literature, and would be less likely to confuse the Creative House product with the Academy’s Oscar. But a large secondary audience — including Star Award recipients and individuals who see the award after it is presented" }, { "docid": "16080375", "title": "", "text": "trades by confusion on the goodwill or reputation of another, whether by intention or not. There are but two inchoative elements that must be established for entitlement, from which all permutations and guises of the cause of action are derived: the senior owner of the mark must demonstrate (1) the adoption and use of a mark and his entitlement to enforce it, and (2) the adoption and use by a junior user of a mark that is likely to cause confusion that goods or services emanate from the senior owner. Yale Electric Corf. v. Robertson, 26 F.2d 972 (2d Cir.1928). The articulation of standards and criteria are numerous for reaching the conclusion whether plaintiff has made his case. The owner of a mark who has developed a reputation and identity with a mark through his products, service, marketing, and presence in the market, has an interest in protecting the business and reputation for which the mark stands, not only at the present time in the current markets in which he does business, but for future times and in related markets that the development of his business might naturally take him. Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970); Yale Electric Corf. v. Robertson, 26 F.2d 972 (2d Cir. 1928); McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268 (S.D.N.Y.1986). The extent to which he may protect this interest relates directly to the strength of his mark. While one mark may not enjoy the strength of identity to preclude use of a junior mark in a related field or neighboring market, another may enjoy such recognition that confusion might result outside his own field or beyond the markets in which he does business. See, e.g. Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117 (9th Cir.), cert. denied, 391 U.S. 966, 88 S.Ct. 2037, 20 L.Ed.2d 879 (1968) (beer vs. scotch); Cook Chemical Co. v. Cook Paint & Varnish Co., 185 F.2d 365 (8th Cir.1950) (paint vs. insecticide); Carling Brewing Co., Inc. v. Philip Morris, Inc.," }, { "docid": "7671291", "title": "", "text": "For example, a mark “may indeed by arbitrary and hence inherently distinctive, yet have little customer recognition or ‘strength’ in the market, or perhaps have high recognition which is limited to a particular product or market segment.” Id. at 1107. This includes an analysis of regional strength, that is, exposure in geographical and product areas. Ameritech, Inc. v. Am. Info. Technologies Corp., 811 F.2d 960, 967 (6th Cir.1987) (noting that “[a] mark might be weak in the national market, but might still be strong in the senior user’s geographical and product area and thus deserving of protection.”); see also Comidas Exquisitos, Inc. v. O’Malley & McGee’s, Inc., 775 F.2d 260, 262 (8th Cir.1985) (finding no likelihood of confusion between two “O’Mai- ley’s” restaurants, one in Ames, Iowa, and one in Atlanta, Georgia). In this case, plaintiff has a smattering of customers, approximately 1,500, on its mailing list who live within the entire state of Ohio. Plaintiff operates all of its retail stores in the Northeast. Its exposure to this region comes purely through its mail order business. Plaintiffs marks, therefore, if entitled to a finding of strength, have their most recognition in the Northeast. Lack of a major presence in this state weighs against a finding of strength in this region. Lastly, if there are numerous third-party registrations of the mark, the mark should be considered weaker. See Homeowners, 931 F.2d at 1108. “The greater the number of identical or more or less similar trade-marks already in use on different kinds of goods, the less is the likelihood of confusion ...” Restatement (First) of Torts § 729 emt. g (1938). See also General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 626-27 (8th Cir.1987). The word “Daddy’s” is abundant in American nomenclature and not surprisingly there are a significant number of registrations utilizing the word “Daddy’s.” A search of the USPTO records by defendant revealed fifteen such registered marks with three additional registrations pending. See def. ex. C. These additional registrations indicate that plaintiffs “Daddy’s” marks should be considered less strong. Defendant does not argue, however, that there are other" }, { "docid": "1318812", "title": "", "text": "mark’s strength for purposes of the likelihood of confusion inquiry. Thus, it is appropriate to consider the sales and advertising expenditures of the product or products bearing the trademark at issue relative to those of other trademarks in the market. Likewise, courts examining the strength of a plaintiffs mark consider the exposure of the mark through independent media coverage, survey evidence of customer perceptions of the mark, and the frequency of attempts to plagiarize or imitate the mark. Consideration of these factors leads to the conclusion that while the RENAISSANCE mark may have some potential power to identify a source in the greeting card market, it is not a strong mark. RGC’s sales average of roughly $12 million per year is minuscule in relation to the size of the overall greeting card industry of $7 billion per year. Likewise, RGC’s attempts to promote its mark through advertising have averaged less than $860,000 per year, and have been targeted primarily to the narrow set of wholesale customers that constitute its direct customer base. Further, RGC has provided no evidence that its mark has been the subject of independent media coverage, nor has RGC provided any survey evidence indicating that there is a strong association between its RENAISSANCE mark and the greeting cards it sells within the minds of the consuming public. Consideration of the mark’s commercial weakness, in combination with the wide use of the term RENAISSANCE in other products, compels the conclusion that the RENAISSANCE mark is a weak mark, such that its ability to identify the source of products does not extend beyond the greeting card market. (ii) The Similarity of the Two Marks The second factor’s relevance to the likelihood of confusion is obvious: the closer the resemblance between the protected mark and the infringing mark, the more likely the prospect.for confusion. See Cable News Network, L.P. v. CNNews.com, 177 F.Supp.2d 506, 519 (E.D.Va.2001). In evaluating the similarity or dissimilarity of the parties’ marks, the “marks need only be sufficiently similar in appearance, with greater weight given to the dominant or salient portions of the marks.” Lone Star," }, { "docid": "13458801", "title": "", "text": "is evidence of actual confusion. Marketing Channels It is undisputed that plaintiffs do not market products bearing the image of Princess Diana themselves. To the extent they present evidence that others market products approved by the Fund on the same marketing channels as defendants, this factors weighs slightly in favor of finding a likelihood of confusion. Likelihood of Expansion Plaintiffs contend that the. licenses granted by the Fund establish that the expansion of their product lines will result in overlap with defendants’ product lines. The Fund has authorized at least 19 parties to use the title or likeness of Princess Diana in conjunction with products sold in the United States. This evidence does not indicate that the Fund has authorized anyone to use Princess Diana’s image on jewelry, dolls or plates. The evidence presented in opposition to the motion for summary judgment does not support a finding that there is a likelihood that the plaintiffs’ product line will expand to encompass the products sold by defendants. Similarity of Marks, Strength of Mark, and Relatedness of Goods In this case, the marks are identical to the extent they contain various images of Princess Diana. Because Princess Diana is known throughout the world, the marks are strong. See Wendt, 125 F.3d at 812 n. 1 citing White, 971 F.2d at 1400 (“the strength of the mark refers to the level of recognition the celebrity enjoys”). Finally, defendants’ products are closely related to Princess Diana’s fame associated with her status as a member of Britain’s Royal Family, a fashion ideal and a well-known humanitarian worker. See White, 971 F.2d at 1400 (the “goods” in celebrity endorsement cases are “the reasons for or source of the plaintiffs fame”). Each of these factors in the traditional likelihood of confusion analysis would weigh in favor of finding a likelihood of confusion. In this case however, each is severely mitigated by the Court’s finding that there is a weak association between the image of Princess Diana and plaintiffs. If there is a lack of association between that image and plaintiffs, the similarity and strength of the marks" }, { "docid": "14140590", "title": "", "text": "used. Academy, 944 F.2d at 1454, n. 3; Eclipse, 894 F.2d at 1117-1118. However, because the district court in this case apparently did not use any of the multi-factor tests in making its likelihood of confusion determination, and because this case involves an appeal from summary judgment and we review de novo the district court’s determination, we will look for guidance to the 8-factor test enunciated in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979). According to AMF, factors relevant to a likelihood of confusion include: (1) strength of the plaintiff’s mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; (8) likelihood of expansion of the product lines. 599 F.2d at 348-49. We turn now to consider White’s claim in light of each factor. In cases involving confusion over endorsement by a celebrity plaintiff, “mark” means the celebrity’s persona. See Allen, 610 F.Supp. at 627. The “strength” of the mark refers to the level of recognition the celebrity enjoys among members of society. See Academy, 944 F.2d at 1455. If Vanna White is unknown to the segment of the public at whom Samsung’s robot ad was directed, then that segment could not be confused as to whether she was endorsing Samsung VCRs. Conversely, if White is well-known, this would allow the possibility of a likelihood of confusion. For the purposes of the Sleekcraft test, White’s “mark,” or celebrity identity, is strong. In cases concerning confusion over celebrity endorsement, the plaintiff’s “goods” concern the reasons for or source of the plaintiff’s fame. Because White’s fame is based on her televised performances, her “goods” are closely related to Samsung’s VCRs. Indeed, the ad itself reinforced the relationship by informing its readers that they would be taping the “longest-running game show” on Samsung’s VCRs well into the future. The third factor, “similarity of the marks,” both supports and contradicts a finding of likelihood of confusion. On the one hand, all of the aspects of the robot" }, { "docid": "22165877", "title": "", "text": "not be given weight when the PTO attorney did not review all the evidence available to the District Court.” A & H, 237 F.3d at 221 (affirming decision that gave “no weight” to “low-level preliminary decision” even though examiner assessed likelihood of confusion with prior mark). We hold that the district court clearly erred in failing to recognize that this factor weighs in Kos’s favor. It does. 2. Strength of the Owner’s Mark The record supports the district court’s finding that this factor weighs in favor of Kos. The court properly analyzed both the conceptual and commercial strength of the ADVICOR mark. Andrx argues that this factor does not favor Kos because ALTO-COR and ADVICOR are similarly distinctive and have similar strength in the marketplace. But the relative strength of the Andrx’s mark is not relevant here. The second Lapp factor looks to “the strength of the owner’s mark.” Lapp, 721 F.2d at 463 (emphasis added). “Under the Lan-ham Act, stronger marks receive greater protection” because they “carry greater recognition, [so that] a similar mark is more likely to cause confusion.” A&H, 237 F.3d at 222. It would not serve the purposes of the Lanham Act for trademark owners to receive less protection from strong infringing marks than weak ones. Indeed, it might be argued that a stronger junior mark is more likely to cause confusion, at least where, as here, both marks are being used in the same market. 3. Factors Indicative of the Care and Attention Expected of Consumers The third Lapp factor weighs against finding a likelihood of confusion “[w]hen consumers exercise heightened care in evaluating the relevant products before making purchasing decisions.” Checkpoint, 269 F.3d at 284. The district court held that Kos did not “convince [it] that the selective consumers in this case, physicians and pharmacists, will suffer from a likelihood of confusion.” JA at 9. The opinion provided no basis for this conclusion, but did incorporate the “reasons ... stated on the record during oral argument.” Id. at 13. There, the judge stated that he thought the differences in the dosage of each drug" }, { "docid": "4210004", "title": "", "text": "presented by “biased” STAR employees. AASTAR also complains that most of the purportedly confused customers were not identified. These arguments, however, properly belong before the fact finder; our review of the record reveals that a jury reasonably could have credited the testimony regarding actual confusion in favor of STAR. 7. Intent that there was no evidence that it adopted its business name in “bad faith,” ie., with the intent to take advantage of STAR’s goodwill and promotion efforts. Evidence of bad intent, however, while potentially probative of likelihood of confusion, is simply not required in a trademark infringement case; moreover, “a finding of good faith is no answer if likelihood of confusion is otherwise established.” President and Trustees of Colby College v. Colby College-New Hampshire, 508 F.2d 804, 811-12 (1st Cir.1975). AASTAR makes much of the fact 8. Strength of the Mark little evidence regarding the strength of STAR’s service mark and that the evidence that was presented showed that the mark was weak. In assessing a mark’s strength, the trier of fact considers evidence of the length of time the mark has been used, its renown in the plaintiffs field of business, and the plaintiffs actions to promote the mark. Equine Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 547 (1st Cir.1995). The relevant evidence presented here was that STAR’s mark was in use in the relevant market area for over two years at the time of trial, and that STAR expended several thousand dollars per month in advertising. AASTAR contends that there was constitutes small support for this factor (and, in fact, STAR admitted at oral argument before this court that the mark was not very Even assuming that this evidence strong), “the strength of the mark is but one of eight factors to be considered in analyzing the likelihood of confusion issue” and sufficient evidence of other factors will sustain a finding of likelihood of confusion. Id. at 546. In conclusion, we cannot say that a reasonable jury could not have reached a verdict for STAR based upon a consideration of all of the factors. A jury" }, { "docid": "1670035", "title": "", "text": "Nevertheless, defendant’s evidence is entitled to little weight. The instances cited by plaintiff represent only isolated instances of possible confusion. Noticeably absent is any evidence of surveys conducted among potential consumers to determine actual confusion. See Coherent, Inc., 935 F.2d at 1126; Jordache, 828 F.2d at 1487-88. The Tenth Circuit has stated: The better view would seem to be that while customer enquiry evidence is admissible and relevant, standing alone with no other evidence it is insufficient proof of actual confusion. Jordache, 828 F.2d at 1487 (quoting 2 McCarthy, supra, § 23:2(B)). Moreover, plaintiffs evidence concerns random acquaintances and not consumers of the parties’ products. The evidence of actual confusion is thus de minimis. “De minimis evidence of actual confusion does not establish the existence of a genuine issue of material fact regarding likelihood of confusion.” Universal Money, 22 F.3d at 1535 (finding isolated instances of actual confusion to be de minim-is). Finally, plaintiffs evidence is double-edged — “[i]t may suggest confusion, but it may also suggest awareness of a potential difference.” Coherent, Inc., 935 F.2d at 1126 n. 3. Accordingly, because plaintiff has failed to present credible evidence of actual confusion, this factor must be weighed in defendant’s favor. Strength of Marks The relative strength of the marks here weighs in plaintiffs favor. “The stronger the mark, the more likely it is that encroachment on it will produce confusion.” First Sav. Bank, at 653. “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” Universal Money, 22 F.3d at 1533. Terms fall into four categories, listed here from weakest to strongest: generic, descriptive, suggestive, and arbitrary or fanciful. First Sav. Bank, at 654-55. “Heartspring” and “Heartsprings” are invented words, but their components project a certain meaning intended by the parties; thus, the marks are suggestive and relatively strong. Summary The names at issue here are very similar and represent strong marks, but the other factors outweigh those considerations. The parties are not competitors, and their products and services" }, { "docid": "1670036", "title": "", "text": "F.2d at 1126 n. 3. Accordingly, because plaintiff has failed to present credible evidence of actual confusion, this factor must be weighed in defendant’s favor. Strength of Marks The relative strength of the marks here weighs in plaintiffs favor. “The stronger the mark, the more likely it is that encroachment on it will produce confusion.” First Sav. Bank, at 653. “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” Universal Money, 22 F.3d at 1533. Terms fall into four categories, listed here from weakest to strongest: generic, descriptive, suggestive, and arbitrary or fanciful. First Sav. Bank, at 654-55. “Heartspring” and “Heartsprings” are invented words, but their components project a certain meaning intended by the parties; thus, the marks are suggestive and relatively strong. Summary The names at issue here are very similar and represent strong marks, but the other factors outweigh those considerations. The parties are not competitors, and their products and services are dissimilar and geared toward distinct populations. Defendant provides very expensive services, the purchase of which requires an especially high degree of sophistication and care. In addition, plaintiffs trade name, “Heartsprings,” has not been placed before consumers in a meaningful way because plaintiffs products are generally identified by other labels. Finally, plaintiff has presented little evidence of actual confusion. In Coherent, Inc., the court upheld the district court’s finding that no likelihood of confusion existed, even though the parties names were almost identical. 935 F.2d at 1125-26. The court noted that the defendant had adopted its name in good faith, the parties were not competitors, they marketed through different channels, and plaintiffs customers were likely to be careful buyers. Id. at 1125; see also Beer Nuts II, 805 F.2d at 925 (“[V]ery similar marks may not generate confusion as to the source of the products where the products are very different or relatively expensive.”)- In the same way here, the mere similarity between the names is not enough. No reasonable fact-finder could conclude that a" } ]

[ { "docid": "22334423", "title": "", "text": "have recognized that a federal court may exercise ancillary jurisdiction “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379-380 (1994) (citations omitted). Thomas has not carried his burden of demonstrating that this suit falls within either cate gory. See id., at 377 (burden rests on party asserting jurisdiction). A “[Ajncillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.” Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 376 (1978). Ancillary jurisdiction may extend to claims having a factual and logical dependence on “the primary lawsuit,” ibid., but that primary lawsuit must contain an independent basis for federal jurisdiction. The court must have jurisdiction over a ease or controversy before it may assert jurisdiction over ancillary claims. See Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966). In a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction. See Kokkonen, supra, at 380-381; H. C. Cook Co. v. Beecher, 217 U. S. 497, 498-499 (1910). Consequently, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit. The basis of the doctrine of ancillary jurisdiction is the practical need “to protect legal rights or effectively to resolve an entire, logically entwined lawsuit.” Kroger, 437 U. S., at 377. But once judgment was entered in the original ERISA suit, the ability to resolve simultaneously factually intertwined issues vanished. As in Kroger, “neither the convenience of litigants nor considerations of judicial economy” can justify the extension" } ]

[ { "docid": "1888224", "title": "", "text": "judgment” against the employer. Id. at 352, 116 S.Ct. 862. The court of appeals affirmed, holding that the district court had ancillary jurisdiction over the suit against Peacock. The Supreme Court agreed to hear Peacock’s appeal and framed the issue as “whether federal courts possess ancillary jurisdiction over new actions in which a federal judgment creditor seeks to impose liability for a money judgment on a person not otherwise liable for the judgment.” Id. at 351,116 S.Ct. 862. Focusing first on the two distinct branches of ancillary jurisdiction, the Court stated: [A] federal court may exercise ancillary jurisdiction “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Peacock, 516 U.S. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The Court held that for ancillary claims having a factual and logical dependence on “the primary lawsuit,” such claims “will not support federal jurisdiction over a subsequent lawsuit.” See id. at 355,116 S.Ct. 862. For the enforcement branch of ancillary jurisdiction however, the Court stated: We have reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court’s inherent power to enforce its judgments. Without jurisdiction to enforce a judgment entered by a federal court, “the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.” In defining that power, we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments — including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances. Id. at 356, 116 S.Ct. 862 (internal citations omitted). The Court also noted that it had “never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not" }, { "docid": "13293482", "title": "", "text": "Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (raising the standard for finding waiver in another context, holding that states must unequivocally consent to suit even where Congress explicitly seeks to shape state behavior through coercive regulation). Given the complexities of this issue, resolving it properly might well require a remand for a hearing and resolution of questions of fact before a trial court. Instead, we refrain from resolving this complex question of Eleventh Amendment jurisprudence because of a prior question of statutory subject matter jurisdiction. III. The doctrine of enforcement jurisdiction is a judicial creation, born of the necessity that courts have the power to enforce their judgments. Federal courts have the ancillary enforcement jurisdiction necessary “to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 380, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Without this ability to enforce judgements rendered, “[t]he judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended.” Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53, 6 L.Ed. 264 (1825). Consequently “[t]he jurisdiction of a Court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 23, 6 L.Ed. 253 (1825). See also Riggs v. Johnson County, 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 768 (1868) (“[I]f the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree.”) (citation omitted). Hence, although federal courts are courts of limited jurisdiction, they often retain residual federal jurisdiction over postjudgment enforcement proceedings flowing from their original jurisdiction over the action. Ancillary enforcement jurisdiction, given its origins in the courts of equity, traditionally has an equitable and discretionary character. Cf. The Judicial Improvements Act of 1990, Pub.L. No. 101-650, § 310, 104 Stat. 5089, 5113-14 (1990), codified at 28 U.S.C. § 1367 (codifying" }, { "docid": "18968329", "title": "", "text": "must ... avoid the inefficiencies of piecemeal adjudication and promote judicial economy by aiding in the efficient and expeditious resolution of all matters connected to the debt- or’s estate.” Matter of Lemco Gypsum, Inc., 910 F.2d 784, 787 (11th Cir.1990). Without a doubt, resolution of the disputes between the Tenants and Polo North potentially impacts the Debtors’ obligations and the continued administration of this Chapter 11 proceeding. To the extent this Court’s statutory jurisdiction remains at issue, the Court notes that it also possesses ancillary jurisdiction to hear these matters. Bankruptcy courts, as courts of limited jurisdiction, may exercise subject matter jurisdiction on two grounds: statutory jurisdiction under 28 U.S.C. § 1334 and ancillary (sometimes called inherent) jurisdiction. See In re Fibermark, Inc., 369 B.R. 761, 764 (Bankr. D.Vt.2007); In re Chateaugay Corp., 201 B.R. 48, 62 (Bankr.S.D.N.Y.1996), aff'd 213 B.R. 633 (S.D.N.Y.1997). The District Court, in In re Chateaugay Corp., held that “[bjankruptcy courts have inherent or ancillary jurisdiction to interpret and enforce their own orders wholly independent of the statutory grant under 28 U.S.C. § 1334.” Cf. Local Loan Co. v. Hunt, 292 U.S. 234, 239, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (“That a federal court of equity has jurisdiction of a bill ancillary to an original case or proceeding in the same court, whether at law or in equity, to secure or preserve the fruits and advantages of a judgment or decree rendered therein, is well settled.”). The United States Supreme Court has held that federal courts may assert ancillary jurisdiction for two separate, though sometimes related purposes: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 380-81, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). Here, the Court is asserting ancillary jurisdiction to enforce the Sale Order, which expressly reserved this Court’s jurisdiction over matters 'arising out of or related to" }, { "docid": "17599752", "title": "", "text": "of appeal from a court’s judgment, Rule 4(b) of the Federal Rules of Appellate Procedure “is a jurisdictional limitation upon the powers of the district court after a judgment of conviction has been entered.” United States v. Sumner, 226 F.3d 1005, 1013 (9th Cir.2000) (citing 18 U.S.C. § 3562(b); United States v. Dumont, 936 F.2d 292, 295 (7th Cir.1991)). Still, a district court may assert ancillary jurisdiction “to adjudicate claims and proceedings related to a claim that is properly before the court.” Black’s Law Dictionary 868 (8th ed.2004); see also United States v. Dunegan, 251 F.3d 477, 478-79 (3d Cir.2001) (“A federal court invokes ancillary jurisdiction as an incident to a matter where it has acquired jurisdiction of a case in its entirety and, as an incident to the disposition of the primary matter properly before it. It may resolve other related matters which it could not consider were they independently presented.”). In Kokkonen v. Guardian Life Insurance Co. of America, the Supreme Court shed some light on the contours of a district court’s ancillary jurisdiction. 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In that case, the Court unanimously held that a district court lacked subject matter jurisdiction to enforce a settlement agreement it had approved where its accompanying order of dismissal did not reserve jurisdiction. Id. at 378, 114 S.Ct. 1673. In so holding, the Court began by reiterating that “[fjederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Id. at 377, 114 S.Ct. 1673 (citations omitted). The Court went on to state that federal courts’ ancillary jurisdiction serves two purposes: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. 1673 (citations omitted). The Court first noted that the claim originally before the district court — the claim it dismissed — had" }, { "docid": "3930605", "title": "", "text": "jurisdiction. First, IFC claims that the District Court had ancillary jurisdiction. Second, IFC claims that the District Court had supplemental jurisdiction under 28 U.S.C. § 1367(a). We undertake a plenary review of dismissals for lack of subject matter jurisdiction. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005). IFC argues that the District Court had subject matter jurisdiction both as a matter of ancillary jurisdiction and as a matter of supplemental jurisdiction. Ancillary jurisdiction is a common law doctrine that has largely been codified as “supplemental jurisdiction” in 28 U.S.C. § 1367. Peacock v. Thomas, 516 U.S. 349, 354, n. 5, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). We do not see the relevant inquiries for ancillary and supplemental jurisdiction as separate; if the District Court had ancillary jurisdiction, it also had supplemental jurisdiction under 28 U.S.C. § 1367. The Supreme Court has explained that “a federal court may exercise ancillary jurisdiction ‘(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.’” Id. at 354 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Previously, we have held that a federal district court “has ancillary jurisdiction to adjudicate a garnishment action by a judgment creditor against a nonparty to the original lawsuit which may owe the judgment debtor an obligation to indemnify against the judgment.” Skevofilax v. Quigley, 810 F.2d 378, 385 (3d Cir.1987) (en banc). Skevofilax involved a garnishment action brought by judgment creditors who had won a federal judgment for malicious prosecution against three police officers. The officers were indemnified by the township that employed them, and the judgment creditors sought to satisfy the judgment by garnishing the township under Fed. R. Civ. P. 69. The township objected that the federal district court lacked subject matter jurisdiction over the garnishment action because the parties were not diverse and the garnishment proceeding was based solely on contract" }, { "docid": "9087869", "title": "", "text": "jurisdiction and Rule 60(b). As explained below, only Rule 60(b) is potentially applicable here. A. The doctrine of ancillary jurisdiction empowers district courts (1) to resolve \"factually interdependent\" claims or (2) to address issues implicating the ability \"to manage [the court's] proceedings, vindicate its authority, and effectuate its decrees.\" Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Neither type gave the district court power to resolve Scott's motion. Scott cannot rely on the first category of ancillary jurisdiction to rescind his settlement agreement on state-law grounds. Generally speaking, \"factually interdependent\" claims are those that support supplemental jurisdiction under 28 U.S.C. § 1367. See Peacock v. Thomas , 516 U.S. 349, 354 n.5, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). This kind of ancillary jurisdiction disappears, however, after the original federal dispute is dismissed. See, e.g. , id. at 355, 116 S.Ct. 862 (\"[O]nce judgment was entered in the original ... suit, the [district court's] ability to resolve simultaneously intertwined issues vanished.\"); Nat'l Presto Indus. v. Dazey Corp. , 107 F.3d 1576, 1580-81 (Fed. Cir.1997) (\"[O]nce the original federal dispute is dismissed, claims that at one time might have been brought as 'ancillary' to that dispute may no longer be brought.\"). Nor did Scott's motion implicate the second type of ancillary jurisdiction-the district court's enforcement authority. The court's enforcement authority extends to \"collateral issues,\" things like fees, costs, contempt, and sanctions. Qureshi v. United States , 600 F.3d 523, 525 (5th Cir.2010) ; see also Kokkonen , 511 U.S. at 379-80, 114 S.Ct. 1673. By default, this power does not include enforcing (or vacating) a settlement that prompted a Rule 41(a)(1)(A)(ii) stipulation of dismissal. See SmallBizPros , 618 F.3d at 463. But there is an exception to this rule: the district court may either \"incorporate or embody the terms of a settlement agreement in a dismissal order\"-such that a breach of the settlement is a violation of a court order-or otherwise \"retain jurisdiction over a settlement agreement by clearly indicating such intent in a dismissal order.\" Id. at 462-63" }, { "docid": "15370010", "title": "", "text": "1135 (1936)). The district court found that it lacked jurisdiction over the garnishment, primarily because the action attempts to hold the City, a third party, liable for payment of a judgment on an independent legal theory, the indemnity agreement, which would require separate analysis and possible discovery concerning the City’s defenses to liability. As set forth above, the City was dismissed from the action on September 30, 1998. The Officers then settled with the Plaintiff and a consent judgment was entered on February 29, 2000. It was not until June 30, 2000, that the Plaintiff served writs of garnishment on the City relying upon Fed.R.Civ.P. 69. The jurisdictional analysis in this garnishment action begins with a consideration of Peacock v. Thomas, 516 U.S. 349, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996), and its discussion of ancillary subject matter jurisdiction. As a starting point, it is necessary to understand that there are two situations in which a court may exercise ancillary jurisdiction over a claim other wise not within the jurisdiction of the court: “ ‘(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.' ” Peacock, 516 U.S. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted)). The first category of ancillary jurisdiction identified above has largely been codified in the supplemental jurisdiction statute, 28 U.S.C. § 1367. The second category of ancillary jurisdiction is generally referred to as “ancillary enforcement jurisdiction.” In Peacock, the plaintiff obtained a federal court judgment against a corporation pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U.S.C. § 1001 et seq. After efforts to collect on the judgment failed, the plaintiff filed a second suit seeking to hold Peacock, an officer and shareholder of the corporation, personally liable under a piercing of the corporate veil theory. The Supreme" }, { "docid": "4296206", "title": "", "text": "over determining fee applications at the time of the dismissal, the Court also would lose the authority to disallow unearned or improper fees or to use disallowance of fees as a sanction for attorney misconduct.” ECF No. 4 at 9. Fear of this parade of horribles is not warranted. First, as discussed above, a bankruptcy court can retain jurisdiction for cause pursuant to 11 U.S.C. § 349. Secondly, the Supreme Court has recognized that federal courts may exercise ancillary jurisdiction “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); see also Peacock v. Thomas, 516 U.S. 349, 354-60, 116 S.Ct. 862,133 L.Ed.2d 817 (1996). Here, we are concerned only with the latter. Courts are able to invoke ancillary jurisdiction post-dismissal to interpret and effectuate previous decrees. In re Ragland, 2006 WL 1997416, at *8; see also In re Poplar Run Five Ltd. P’ship, 192 B.R. 848, 859 (Bankr.E.D.Va. 1995) (“A court does, however, have jurisdiction to enforce its own orders under the doctrine of ancillary jurisdiction.”); In re Chateaugay Corp., 201 B.R. 48, 62 (Bankr. S.D.N.Y.1996) (“Bankruptcy courts have inherent or ancillary jurisdiction to interpret and enforce their own orders ... ”). For instance, in Post v. Ewing, a district court affirmed that a bankruptcy court’s jurisdiction extended beyond the dismissal of a bankruptcy case because the debtors’ attorney ignored court instructions and wrongfully acquired fees from the debtors. 119 B.R. 566, 568 (S.D.Ohio 1989). While the court did not explicitly invoke ancillary jurisdiction, the court reasoned that “[i]n this instance, denying the bankruptcy court jurisdiction to enter an Order to see that its prior instructions were followed by [the attorney] would only serve to thwart the goals of the Bankruptcy Code and unjustly enrich [the attorney].” Id. at 568-69; Cf In re Matthews, 2012 WL 33213, at *2" }, { "docid": "270919", "title": "", "text": "novo and the district court’s factual findings for clear error.” Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1319 (11th Cir.2011) (internal quotation marks and citation omitted). III. DISCUSSION This appeal presents two issues. First, we must decide whether the ancillary jurisdiction of the district court extended to the supplementary proceeding initiated by National Maritime. Second, we must decide whether the district court erred when it determined that Burrell Shipping fraudulently transferred the proceeds to Straub. We address each issue in turn. A. The District Court Had Subject-Matter Jurisdiction to Hear the Supplementary Proceeding Initiated by National Maritime. The parties agree that ancillary jurisdiction is the only possible basis for subject-matter jurisdiction over the supplementary proceeding. This Court has not addressed when a supplementary proceeding falls within the ancillary jurisdiction of a district court. We conclude that the district court had ancillary jurisdiction over this supplementary proceeding. Ancillary jurisdiction exists in two circumstances: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Peacock v. Thomas, 516 U.S. 349, 354, 116 S.Ct. 862, 867, 133 L.Ed.2d 817 (1996) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 1676, 128 L.Ed.2d 391 (1994)). The latter category encompasses “a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments — including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances.” Id. at 356, 116 S.Ct. at 868 (citations omitted). But ancillary jurisdiction does not extend to “a new lawsuit to impose liability for a judgment on a third party.” Id. at 359, 116 S.Ct. at 869. The decision of the Supreme Court in Peacock is instructive. After the plaintiff in Peacock won a judgment against his employer, the plaintiff initiated a supplementary proceeding to pierce the corporate veil of his employer to reach assets of a third party. Id. at 351-52, 116 S.Ct. at 865-66." }, { "docid": "15370030", "title": "", "text": "143 L.Ed.2d 40 (1999), and the Eastern District of Michigan’s reasoning in Childress v. Williams, 121 F.Supp.2d 1094 (E.D.Mich.2000), correctly analyze Peacock’s effect on the doctrine of ancillary jurisdiction in Rule 69 proceedings. In Peacock, Thomas had been awarded a judgment of $187,628.93 by the district court in his ERISA class action against Tru-Tech, his former employer. Peacock, 516 U.S. at 351, 116 S.Ct. 862. The district court had found that Tru-Tech breached its fiduciary duties in administering the corporation’s pension benefits plan, but the district court had also explicitly ruled that Peacock, an officer and shareholder of Tru-Tech, was not a fiduciary. Id. Unable to obtain the money from Tru-Tech, Thomas sued Peacock in federal court alleging various theories, including a veil-piercing claim under ERISA. Id. at 352, 116 S.Ct. 862. The Supreme Court held that ERISA does not authorize veil-piercing claims; therefore, ERISA did not provide a basis for federal jurisdiction over Thomas’s veil-piercing claim. Id. at 353, 116 S.Ct. 862. The Court further held that the doctrine of ancillary jurisdiction did not apply to Thomas’s veil-piercing claim, and as a result, the district court lacked subject matter jurisdiction over Thomas’s action against Peacock. Id. at 355-59, 116 S.Ct. 862. In so holding, the Court stated that “a federal court may exercise ancillary jurisdiction ‘(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.’ ” Id. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The Court held that Thomas’s veil-piercing claim did not involve the first accepted usage of ancillary jurisdiction, as Thomas brought his veil-piercing claim in a subsequent lawsuit, and thus “the ability to resolve simultaneously factually intertwined issues vanished.” Id. at 355, 116 S.Ct. 862. The Court further held that Thomas’s veil-piercing claim did not involve the second accepted usage of ancillary jurisdiction because, although ancillary jurisdiction may be" }, { "docid": "8207695", "title": "", "text": "Opportunity Act and the Administrative Procedure Act, id. ¶¶ 254-59. He also sought a declaratory judgment finding that the Government rendered the Agreement’s Track B process “illusory,” and had otherwise violated LaBatte’s constitutional and other rights. Id. ¶¶ 183-90, 246-53. The District Court held that it lacked jurisdiction to hear LaBatte’s motion. Because the Court had dismissed the case with prejudice following settlement, it determined that it was only through its ancillary jurisdiction that it could hear La-Batte’s motion. Memorandum Order at 7-8, Keepseagle v. Vilsack, No. 99-CV-3119 (D.D.C.2014), ECF No. 692, J.A. 239-40. Relying on the fact that the Court had retained jurisdiction over the case only in very limited areas, none of which applied to LaBatte’s motion, it found that LaBatte had failed to establish that the Court had ancillary jurisdiction over his motion. Id. at 8-10, J.A. 240-42. LaBatte now seeks our review of the District Court’s determination. II. Because “[f]ederal courts are courts of limited jurisdiction,” “[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). The doctrine of “ancillary jurisdiction” “recognizes [that] federal courts[] [have] jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Id. at 378, 114 S.Ct. 1673. The Supreme Court has defined two separate purposes for which courts may assert ancillary jurisdiction: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. 1673 (internal citations omitted). Interpreting Kokkonen as it pertains to settlement agreements, we have explained that “district courts enjoy no free-ranging ‘ancillary’ jurisdiction to enforce consent decrees, but are instead constrained by the terms of the decree and related order.” Pigford v. Veneman (Pigford I), 292 F.3d 918," }, { "docid": "15370011", "title": "", "text": "to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.' ” Peacock, 516 U.S. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted)). The first category of ancillary jurisdiction identified above has largely been codified in the supplemental jurisdiction statute, 28 U.S.C. § 1367. The second category of ancillary jurisdiction is generally referred to as “ancillary enforcement jurisdiction.” In Peacock, the plaintiff obtained a federal court judgment against a corporation pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U.S.C. § 1001 et seq. After efforts to collect on the judgment failed, the plaintiff filed a second suit seeking to hold Peacock, an officer and shareholder of the corporation, personally liable under a piercing of the corporate veil theory. The Supreme Court determined that it was without an independent jurisdictional basis for the suit because ERISA does not authorize a veil-piercing action. In addition, the Court rejected the plaintiffs argument that the federal courts had ancillary enforcement jurisdiction over the second suit. The Court began its analysis by emphasizing that it has “reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court’s inherent power to enforce its judgments.” Peacock, 516 U.S. at 356, 116 S.Ct. 862. The Court further explained that, “[i]n defining that power, we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances.” Id. (citations omitted). Nevertheless, Peacock concluded that it was without ancillary jurisdiction to entertain plaintiffs second suit. The Court cautioned that the recognition of ancillary supplementary proceedings has not extended beyond attempts to execute, or guarantee the eventual executability of a federal judgment. More specifically, the" }, { "docid": "6902740", "title": "", "text": "jurisdiction if the proceeding were an original one” and that these principles apply in bankruptcy. Local Loan Co. v. Hunt, 292 U.S. 234, 239-40, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); accord Thomas, Head & Greisen Employees Trust v. Buster, 95 F.3d 1449, 1453-54 (9th Cir.1996). The rationale is that a federal court has “ancillary enforcement jurisdiction” that is automatically available for use “in subsequent proceedings for the exercise of a federal court’s inherent power to enforce its judgments.” Peacock v. Thomas, 516 U.S. 349, 356, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). Accord Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-81, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Riggs v. Johnson County, 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 768 (1867). Such ancillary enforcement jurisdiction is regarded as fundamentally a creature of necessity. Peacock, 516 U.S. at 359, 116 S.Ct. 862; Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673; Riggs, 73 U.S. at 187. Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal, that if the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree. Express determination of this court is, that the jurisdiction of a court is not exhausted by the rendition of the judgment, but continues until that judgment shall be satisfied. Consequently, a writ of error will lie when a party is aggrieved in the foundation, proceedings, judgment, or execution of a suit in a court of record. Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution. Riggs v. Johnson County, 73 U.S. at 187 (footnotes omitted). Actions “brought in aid of an execution or to effectuate a judgment entered in the prior suit” are ancillary to the original action, In re Lawson, 156 B.R. 43, 46 (9th Cir. BAP 1993); “[t]hey are" }, { "docid": "15370031", "title": "", "text": "apply to Thomas’s veil-piercing claim, and as a result, the district court lacked subject matter jurisdiction over Thomas’s action against Peacock. Id. at 355-59, 116 S.Ct. 862. In so holding, the Court stated that “a federal court may exercise ancillary jurisdiction ‘(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.’ ” Id. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The Court held that Thomas’s veil-piercing claim did not involve the first accepted usage of ancillary jurisdiction, as Thomas brought his veil-piercing claim in a subsequent lawsuit, and thus “the ability to resolve simultaneously factually intertwined issues vanished.” Id. at 355, 116 S.Ct. 862. The Court further held that Thomas’s veil-piercing claim did not involve the second accepted usage of ancillary jurisdiction because, although ancillary jurisdiction may be used to enforce judgments, the Court has “never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment.” Id. at 357, 116 S.Ct. 862. In Yang, a gost-Peacock decision, the Seventh Circuit held that the doctrine of ancillary jurisdiction gave the district court subject matter jurisdiction over Yang’s Rule 69 garnishment action. Yang, 137 F.3d at 526. Yang had been awarded a substantial monetary judgment in his §§ 1983 and 1985 actions against two police officers. Id. at 522-23. Approximately three months later, ‘Tang filed a petition for indemnification and writ of execution, seeking indemnification of [his judgments against the officers] from the City of Chicago pursuant to 745 ILCS 10*9-102. Section 9-102 directs a municipality to indemnify a tort judgment entered against an employee if the employ ee’s misconduct was within the scope of his employment.” Id. at 524. The court held that “a Rule 69 garnishment proceeding to collect a judgment from a third" }, { "docid": "8207696", "title": "", "text": "burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). The doctrine of “ancillary jurisdiction” “recognizes [that] federal courts[] [have] jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Id. at 378, 114 S.Ct. 1673. The Supreme Court has defined two separate purposes for which courts may assert ancillary jurisdiction: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. 1673 (internal citations omitted). Interpreting Kokkonen as it pertains to settlement agreements, we have explained that “district courts enjoy no free-ranging ‘ancillary’ jurisdiction to enforce consent decrees, but are instead constrained by the terms of the decree and related order.” Pigford v. Veneman (Pigford I), 292 F.3d 918, 924 (D.C.Cir.2002); accord Pigford v. Vilsack (Pigford II), 111 F.3d 509, 514 (D.C.Cir.2015) (“While it may be a ‘well-established principle ... that a district court retains jurisdiction under federal law to enforce its consent decree[s],’ it retains this authority only if the parties’ agreement or the court order dismissing the action reserves jurisdiction to enforce compliance.” (quoting Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 286 (D.C.Cir.1993)) (citing Kokkonen, 511 U.S. at 381, 114 S.Ct. 1673)). ‘We review a district court decision interpreting a consent decree and any underlying agreement de novo.” Pigford II, 777 F.3d at 513. “We review the denial of a motion to intervene de novo for issues of law, for clear error as to findings of fact and for abuse of discretion on issues that involve a measure of judicial discretion.” Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1322 (D.C.Cir.2013) (internal quotation marks omitted). III. The District Court correctly applied Kokkonen and determined that it did not have jurisdiction to hear LaBatte’s claim. LaBatte’s claim is not “factually interdependent”" }, { "docid": "6122974", "title": "", "text": "The issue of cy pres was not raised by any objector. See generally Transcript of April 28, 2011 Fairness Hearing, ECF No. 609. After hearing from all who attended the fairness hearing, the Court found that the Agreement was fair and reasonable and approved it pursuant to Federal Rule of Civil Procedure 23(e). See Order, ECF No. 606. No appeal was filed from the Court’s approval of the Agreement. Id. at 238, 2014 WL 5796751, at *3. C. The Settlement Fund is Distributed, Leaving $380,000,000 Leftover. By design under the Agreement, the Court was largely uninvolved in the distribution process that followed final approval of the Agreement, with one exception. Over the course of the distribution, a hand ful of potential claimants petitioned this Court for relief from allegedly erroneous determinations made during, the Non-Judicial Claims Process. See Smith Mot. to Intervene, ECF No. 622; LaBatte Mot. to Intervene, ECF No. No. 635; Jones Mot. to Intervene, ECF No, 693. The Court rejected these requests for similar reasons. See Order Denying Smith Mot., ECF No. 633; Order Denying LaBatte Mot., ECF No. 692; Order Denying Jones Mot,, ECF No. 720. • . . Because this case had settled, the Court’s jurisdiction was limited. See Order Denying LaBatte Mot., ECF No. 692 at 7-8. The putative intervenors had to rely on the Court’s ancillary jurisdiction, but “[ajncillary jurisdiction ... is a relatively limited source of jurisdiction[,] aris[ing]: ‘(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent ... and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.’ ” Id. at 8 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Neither criterion was satisfied, however. The first was inapplicable because the facts alleged by each putative intervenor—erroneous determinations during the Non-Judicial Claims Process—were distinct from the underlying claims of discrimination. See, e.g., id. The second was inapplicable because “ ‘[district courts enjoy no free-ranging ‘ancillary’ jurisdiction to enforce consent decrees," }, { "docid": "270920", "title": "", "text": "(2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Peacock v. Thomas, 516 U.S. 349, 354, 116 S.Ct. 862, 867, 133 L.Ed.2d 817 (1996) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 1676, 128 L.Ed.2d 391 (1994)). The latter category encompasses “a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments — including attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances.” Id. at 356, 116 S.Ct. at 868 (citations omitted). But ancillary jurisdiction does not extend to “a new lawsuit to impose liability for a judgment on a third party.” Id. at 359, 116 S.Ct. at 869. The decision of the Supreme Court in Peacock is instructive. After the plaintiff in Peacock won a judgment against his employer, the plaintiff initiated a supplementary proceeding to pierce the corporate veil of his employer to reach assets of a third party. Id. at 351-52, 116 S.Ct. at 865-66. The Supreme Court held that ancillary jurisdiction did not extend to the supplementary proceeding because the effect of the plaintiffs claim would be “to impose liability for a money judgment on a person not otherwise liable for the judgment.” Id. at 351, 116 S.Ct. at 865. As the Court explained, the claim was more than an attempt “to force payment ... or to void postjudgment transfers.” Id. at 357 n. 6, 116 S.Ct. at 868 n. 6. In contrast with Peacock, the district court had ancillary jurisdiction over this supplementary proceeding because National Maritime sought to disgorge Straub of a fraudulently transferred asset, not to impose liability for a judgment on a third party. Unlike the defendant in Peacock, Straub is not personally liable for the judgment against Burrell Shipping. Id. at 351, 116 S.Ct. at 865. Straub’s liability is limited instead to the proceeds that Bur-rell Shipping fraudulently transferred to him. If the value of the transferred proceeds was less than the value of the judgment against Burrell Shipping, National Maritime would have no" }, { "docid": "9973158", "title": "", "text": "“from its inception, was a complete nullity and without legal effect,” Lubben, 453 F.2d at 649. III. A. Ancillary Enforcement Jurisdiction “The doctrine of enforcement jurisdiction is a judicial creation, born of the necessity that courts have the power to enforce their judgments.” U.S.I. Props. Corp. v. M.D. Constr. Co., 230 F.3d 489, 496 (1st Cir.2000). Without this “residual federal jurisdiction ... flowing from [a court’s] original jurisdiction over the action,” id. at 496, “the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution,” Riggs v. Johnson Cty., 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 768 (1867). However, because enforcement jurisdiction is a “creature of necessity,” it extends only as far as required to effectuate a judgment. Peacock v. Thomas, 516 U.S. 349, 359, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). Fafel contends that the district court impermissibly extended its ancillary jurisdiction to enforce a judgment by interpreting and enforcing the terms of the underlying Rule 68 offer and acceptance of judgment, which, he argues, constituted nothing more than a private settlement agreement between non-diverse parties governed solely by state contract law. Under Kokkonen, Fafel maintains, the court’s failure to incorporate the terms of the offer of judgment into the formal judgment or to include an express provision retaining jurisdiction deprived it of authority to enforce the provision in the Rule 68 offer purporting to “satisfy all claims made and relief sought by the plaintiff against the defendant arising from or related to [Fafel’s] April 2000 termination.” B. The Kokkonen Decision In Kokkonen, the Supreme Court unanimously held that a district court lacked jurisdiction to enforce the terms of a settlement agreement after the underlying federal court action had been dismissed with prejudice by stipulation of the parties under Rule 41(a)(1)(ii). 511 U.S. at 382, 114 S.Ct. 1673. Although the substance of the oral settlement agreement was “recited, on the record, before the District Judge in chambers,” id. at 376, 114 S.Ct. 1673, the terms later sought to be enforced, which provided for the return of files to one" }, { "docid": "2099147", "title": "", "text": "circuit courts similarly held that a district court may use its inherent equitable powers to order the Executive to expunge arrest and/or conviction records in narrow circumstances. However, some circuits, including some of the circuit courts noted above, have ruled that Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), requires the conclusion that federal courts lack subject matter jurisdiction over applications to expunge convictions on equitable grounds. Nonetheless, other circuits have reaffirmed their original holdings since Kokkonen. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 535-37 (D.C.Cir.2015); Camfield v. City of Oklahoma City, 248 F.3d 1214, 1234 (10th Cir.2001) (“It is well settled in this circuit that courts have inherent equitable authority to order the ex-pungement of an arrest record or a conviction in rare or extreme circumstances”). I find the shift of some circuits, spurred by Kokkonen, perplexing. Kokkonen concerned the ancillary jurisdiction of a district court over a contract dispute. The Supreme Court held that district courts lack the jurisdiction to hear a breach of settlement contract claim where consideration for that settlement contract was dismissal of an earlier federal suit. Kokkonen, 511 U.S. at 376-77, 114 S.Ct. 1673. The Court stated that ancillary jurisdiction generally serves two purposes: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. Id. at 379-80, 114 S.Ct. 1673 (internal citations omitted). Applying that rationale for ancillary jurisdiction, the Court stated, “The facts to be determined with regard to [ ] breaches of contract are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business.” Id. at 381, 114 S.Ct. 1673. In my view, Kokkonen has little application to the jurisdictional question at issue here. See Lucido, 612 F.3d at 878 (Batchelder, J. dissenting) (“the present case is [not] exactly on" }, { "docid": "1888223", "title": "", "text": "case was a suit to set aside a fraudulent conveyance (and not to establish liability) “it was within the ancillary jurisdiction of the District Court.” Id. at 296. Appellees’ principal argument is that Empire Lighting is no longer good law after the Supreme Court’s decision in Peacock v. Thomas, 516 U.S. 349, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). We disagree. In Peacock, plaintiff Thomas prevailed on an ERISA claim against his employer in the district court. While the judgment was on appeal, an officer and shareholder of the employer company named Peacock settled many of the employer’s accounts. Thomas failed to execute on the judgment pending appeal, and was unsuccessful in collecting on the judgment after its affir-mance by the court of appeals. Thomas thereafter sued Peacock personally in federal court, alleging fraudulent conveyance of the company’s assets to prevent satisfaction of the ERISA judgment, and later added a claim to pierce the corporate veil. The district court pierced the corporate veil and entered a judgment against Peacock in “the precise amount of the judgment” against the employer. Id. at 352, 116 S.Ct. 862. The court of appeals affirmed, holding that the district court had ancillary jurisdiction over the suit against Peacock. The Supreme Court agreed to hear Peacock’s appeal and framed the issue as “whether federal courts possess ancillary jurisdiction over new actions in which a federal judgment creditor seeks to impose liability for a money judgment on a person not otherwise liable for the judgment.” Id. at 351,116 S.Ct. 862. Focusing first on the two distinct branches of ancillary jurisdiction, the Court stated: [A] federal court may exercise ancillary jurisdiction “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Peacock, 516 U.S. at 354, 116 S.Ct. 862 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The Court held that for ancillary claims having a factual" } ]

[ { "docid": "14356509", "title": "", "text": "[459], which amendment took effect after th[is] [C]ourt had “imposed” his otherwise lawful sentence. Id. at 8. CONCLUSION Rios-Paz moves for a modification of his sentence in light of the additional one-level reduction for acceptance of responsibility as provided for in Amend. 459 to the Sentencing Guidelines. As that amendment cannot be retroactively applied, his habeas petition and, alternatively, his motion for reduction of sentence is denied. SO ORDERED. . The pre-sentence report properly established a base offense level of 32 under Guideline § 2D1.1(a)(3), (c)(6), based on the 6.933 kilograms linked to Rios-Paz. His sentence was then computed for a total offense level of 26 after the base offense level was reduced by 4 levels for his minimal role (Guideline § 3B1.2(a)) and by 2 levels for his acceptance of responsibility (Guideline § 3E1.1(a)). . Section 3582 provides, in relevant part: The court may not modify a term of imprisonment once it has been imposed except that— (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o), upon motion of the defendant ... or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2) (emphasis supplied). . Where a 1992 amendment was intended to clarify an existing Guideline, the Commission so stated in the commentary to the amendment. See, e.g., App. C, Amend. 454 (1992) (\"This amendment clarifies ...\"); App. C, Amend. 456 (1992) (same); App. C, Amend. 467 (1992) (same); App. C., Amend. 470 (1992) (same); App. C., Amend 471 (1992) (same); App. C., Amend 473 (1992) (same); but cf. App. C., Amend. 462 (1992) (\"This amendment expands ...”); App. C., Amend. 469 (1992) (same)." } ]

[ { "docid": "23205534", "title": "", "text": "and is therefore reviewed de novo. See United States v. Tocco, 200 F.3d 401, 428 (6th Cir.2000). DISCUSSION Carter appeals the denial of his motion to amend his sentence pursuant to 18 U.S.C. § 3582. 18 U.S.C. § 3582(c)(2) provides a mechanism for the modification of a sentence if the Sentencing Commission changes the relevant sentencing range after a defendant is sentenced. Section 3582 provides: The court may not modify a term of imprisonment once it has been imposed except that — ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c). Carter’s § 3582 motion asserts that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), changed his relevant sentencing range and his sentence should thus be modified. On appeal, the Government argues that the § 3582 motion should be construed as a second or successive § 2255 motion subject to additional screening requirements. Carter has previously filed both a motion to vacate pursuant to § 2255 and a Rule 60(b) Motion for Relief from judgment. Whether a § 3582 motion must be considered as a second or successive § 2255 motion is a matter of first impression in this Circuit. Before addressing the merits, we will consider whether § 3582 motions should be construed as second or successive § 2255 motions, as the government urges. 1. Gonzalez precedent In 2005, the Supreme Court held that motions for relief from judgment under Fed. R. Civ. P. 60(b) should be construed as second or successive habeas motions in some eases. See Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct." }, { "docid": "22453846", "title": "", "text": "because Amendment 706 did not lower his “applicable guideline range.” Alternatively the government contends that a sentence reduction was not warranted because the district court sentenced Tolliver in accordance with the parties’ stipulation and not a post-departure guideline range. We review de novo the district court’s authority to modify a sentence under 18 U.S.C. § 3582(c)(2). United States v. Baylor, 556 F.3d 672, 673 (8th Cir.2009) (per curiam); see also United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009) (statutory interpretation is underpinning of district court’s finding that defendant was not eligible for sentence reduction under § 3582(c)(2)); United States v. Caraballo, 552 F.3d 6, 9 (1st Cir.2008) (whether district court had authority to act 'under § 3582(c)(2) “is purely a question of statutory interpretation”), cert. denied, — U.S. -, 129 S.Ct. 1929, 173 L.Ed.2d 1075 (2009). Section 3582(c)(2) provides that a district court may reduce a defendant’s term of imprisonment if that sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). According to the relevant policy statement, a reduction is not authorized where the amendment in question, in this case Amendment 706, “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The government argues that the district court’s determination that Tolliver was a career offender under the guidelines precludes his eligibility for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Tingle, 524 F.3d 839, 840 (8th Cir.) (applicable guideline range for career offenders was not lowered by 706) (per curiam), cert. denied, — U.S. -, 129 S.Ct. 473, 172 L.Ed.2d 339 (2008). Specifically the government contends that under the application instructions of the guidelines, see U.S.S.G. § 1B1.1, the district court’s departure from Tolliver’s career offender guideline range is categorically outside the “applicable guideline range.” We agree. “The Sentencing Commission directs courts to apply the guidelines provisions in a specific order.” United States v. Doe, 564 F.3d 305, 311 (3d" }, { "docid": "22964415", "title": "", "text": "States v. Dunphy, 551 F.3d 247, 250 (4th Cir.2009); United States v. Rhodes, 549 F.3d 833, 837 (10th Cir.2008). B. Eligibility for Sentence Reduction Under § 3582(c)(2) Section 3582(c)(2) provides an exception to the normal rule that a “court may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). This subsection allows for modification under the following circumstances: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. § 3582(c)(2). Section 1B1.10 of the Sentencing Guidelines identifies the guidelines amendments which may be applied retroactively and establishes the proper procedure for implementing an amendment under § 3582(c)(2). The current version of § 1B1.10, which became effective March 3, 2008, provides generally that [i]n a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18 U.S.C. 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement. U.S.S.G. § 1B1.10(a)(l); U.S. Sentencing Guidelines Manual app. C, amend. 712 (2008). Consistent with the statutory directive that a reduction may be given only to “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2), Section 1B1.10 sets out two cases in which a reduction in a defendant’s term of imprisonment is not authorized: Exclusions. — A" }, { "docid": "22719319", "title": "", "text": "low enough sentence within the recalculated range. Consequently, Evans has shown no abuse of discretion. C. Evans raises the issue of a miscalculated criminal history score in his original sentencing. “A § 3582(c)(2) motion is not the appropriate vehicle for raising [issues related to the original sentencing].” United States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994). Those are arguments for direct appeal and are not cognizable under § 3582(c)(2). Id. The judgment is AFFIRMED. . The Sentencing Commission amended the guidelines applicable to cocaine base (i.e., crack cocaine) offenses by raising the quantity required to trigger each base offense level, effectively lowering each respective sentencing range. See U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). That amendment was then made retroactive by a subsequent amendment to the guidelines. See U.S.S.G. app. C, amend. 713 (Mar. 3, 2008). . “[I]f a defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) The policy statement at issue is U.S.S.G. § IB 1.10(b)(2)(A). . U.S.S.G. § 1B 1.10(b)(2)(A), following its modification by amendment 711, states, in relevant part, that \"the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range. . See United States v. Fanfan, 558 F.3d 105 (1st Cir.2009), cert. denied, 2009 U.S. LEXIS 5275 (U.S. Oct. 5, 2009); United States v. Savoy, 567 F.3d 71 (2d Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 342, 175 L.Ed.2d 246, 2009 WL 2628283, 2009 U.S. LEXIS 6600 (U.S. Oct. 5, 2009); United States v. Doe, 564 F.3d 305 (3d Cir.2009); United States v. Dunphy, 551 F.3d 247 (4th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009); United States v. Cunningham, 554 F.3d 703 (7th Cir.), cert. denied, - U.S. -, 129" }, { "docid": "19911392", "title": "", "text": "States v. Colson, 573 F.3d 915, 916 (9th Cir.2009). We review a district court’s interpretation of a statute de novo. United States v. Paulk, No. 08-50229, 2009 WL 2393222, at * (9th Cir. Aug.6, 2009). We also review the district court’s interpretation of the Federal Rules of Criminal Procedure de novo. Id. DISCUSSION Under 18 U.S.C. § 3582(c), a district court generally “may not modify a term of imprisonment once it has been imposed.” There are, however, three exceptions, one of which is provided by § 3582(c)(2). This section states: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The policy statements to which the statute refers appear in U.S.S.G. § 1B1.10 and its accompanying Application Notes. The policy statements note that where the imposed term of imprisonment is less than the applicable Guidelines sentencing range, “a reduction comparably less than the amended guideline range ... may be appropriate” but that relief is unlikely to be appropriate where the sentence was a non-Guidelines sentence determined under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and 18 U.S.C. § 3553(a). See U.S.S.G. § 1B1.10(b)(2)(B). Bride argues that the district court erred when it held that it lacked authority to consider his motion because a sentence imposed pursuant to a Rule 11(c)(1)(C) plea necessarily is not “based on a sentencing range that has subsequently been lowered by the Sentencing Commission” as required by § 3582(c)(2). Bride urges us to hold that a sentence is based on the Guidelines where there is some “nexus” between the applicable Guidelines range and the actual sentence. We decline" }, { "docid": "23079331", "title": "", "text": "cocaine offenses by two levels. See U.S.S.G. supp. to app. C, amend. 706. On March 3, 2008, Amendment 713 went into effect, giving Amendment 706 retroactive effect. See U.S.S.G. supp. to app. C, amend. 713. On February 25, 2008, Watkins filed a motion for reduction of sentence pursuant to section 3582(c)(2) based on Amendment 505, Amendment 706, consideration of the section 3553(a) sentencing factors, and application of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court denied Watkins’s motion. The district court declined to consider a reduction based on Amendment 505 because it had previously denied three similar motions and it found no justi fication for a reduction. The district court also found that Watkins’s sentencing range was not affected by Amendment 706 and it thus lacked authority to reduce his sentence based on Amendment 706. Watkins appeals. II. STATUTORY FRAMEWORK AND STANDARD OF REVIEW A district court may modify a defendant’s sentence only as authorized by statute. See United States v. Johnson, 564 F.3d 419, 421 (6th Cir.2009). Under section 3582(c)(2), a district court may modify a term of imprisonment: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Supreme Court has held that section 3582(c) establishes a two-step inquiry. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one of the inquiry, the court must determine the defendant’s eligibility for a sentence modification under the Sentencing Commission’s policy statements and the extent of reduction authorized. Id. The Sentencing Commission has identified the amendments that may apply retroactively and the procedure for deciding a motion for reduction of sentence in a policy statement. See U.S.S.G. § 1B1.10. Both Amendment 505" }, { "docid": "22453845", "title": "", "text": "the career offender adjustment but on the now amended [U.S.S.G.] § 2D1.1 drug table.” The district court denied Tolliver’s motion, stating that Tolliver was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) because the amended guidelines did not change Tolliver’s status as a career offender. The court noted that Tolliver’s 188 month sentence “was based on a stipulation between the parties, and not on a change to the offense level.” On appeal Tolliver argues that the district court erred in denying his motion for a sentence reduction because the 188 month sentence imposed had “no relationship to the career offender guidelines” but was based on the low end of his sentencing range which was “calculated by implementation of the drug quantity tables, as settled by the parties in the original plea agreement and a second time during negotiations over the post-conviction relief petition.” The government argues that the district court did not err in concluding Tolliver, as a career offender, was ineligi ble for a reduced sentence under 18 U.S.C. § 3582(c)(2) because Amendment 706 did not lower his “applicable guideline range.” Alternatively the government contends that a sentence reduction was not warranted because the district court sentenced Tolliver in accordance with the parties’ stipulation and not a post-departure guideline range. We review de novo the district court’s authority to modify a sentence under 18 U.S.C. § 3582(c)(2). United States v. Baylor, 556 F.3d 672, 673 (8th Cir.2009) (per curiam); see also United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009) (statutory interpretation is underpinning of district court’s finding that defendant was not eligible for sentence reduction under § 3582(c)(2)); United States v. Caraballo, 552 F.3d 6, 9 (1st Cir.2008) (whether district court had authority to act 'under § 3582(c)(2) “is purely a question of statutory interpretation”), cert. denied, — U.S. -, 129 S.Ct. 1929, 173 L.Ed.2d 1075 (2009). Section 3582(c)(2) provides that a district court may reduce a defendant’s term of imprisonment if that sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction" }, { "docid": "23335711", "title": "", "text": "553 F.3d 225, 226 (2d Cir.2009) (per curiam). A district court “ ‘may not generally modify a term of imprisonment once it has been imposed.’ ” Id. (quoting Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007) (per curiam)). Section 3582(c)(2), however, provides that in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Sentencing Commission (“Commission”) promulgated Amendment 706 to the Guidelines, effective November 1, 2007, which reduced by two levels the base offense level associated with each enumerated quantity of crack cocaine. See U.S.S.G. Supp. to App. C, amend. 706 (2008). The Commission subsequently made that amendment retroactive and, pursuant to 28 U.S.C. § 994(a)(2), issued a policy statement in which it explained that where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of [certain specified amendments (including the crack amendments) ] to the Guidelines Manual ..., the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement. U.S. S.G. § 1B1.10(a)(1). The policy statement, in turn, provides that a district court, when considering whether a reduction is warranted, “shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” Id. § lB1.10(b)(l). It provides also that, save for exceptions not applicable here, “the court shall not" }, { "docid": "22429903", "title": "", "text": "§ 2D1.1, and was therefore not based on “a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Accordingly, the government argues Martinez is not eligible for a reduction. In a June 26, 2008 hearing, the District Court ruled that Martinez was not eligible for a sentence reduction “because the so-called crack cocaine amendments do not change the career offender provisions in the United States Sentencing Guidelines,” and it denied the defendant’s motion in an order entered on that date. J.A. 36-38. DISCUSSION The only issue on appeal is whether Martinez is eligible for a sentence reduction under the crack cocaine amendments, pursuant to 18 U.S.C. § 3582(c)(2), having been sentenced as a career offender under § 4B1.1 of the Guidelines. The determination of whether an original sentence was “based on a sentencing range that was subsequently lowered by the Sentencing Commission,” 18 U.S.C. § 3582(c)(2), is a matter of statutory interpretation and is thus reviewed de novo. United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009). “A district court may not generally modify a term of imprisonment once it has been imposed.” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007). However, in limited circumstances a sentence reduction may be authorized by Congress and the Sentencing Commission. See id. (citing 28 U.S.C. § 994(o)). Specifically, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce a defendant’s sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Accordingly, reducing a defendant’s sentence pursuant to § 3582(c)(2) is only appropriate if (a) the defendant was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission” and (b) the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.” Id. A. Based on a Subsequently Lowered Guidelines Range Reducing Martinez’s sentence is not appropriate because his" }, { "docid": "16827706", "title": "", "text": "of crack cocaine” in the Guidelines Manual drug quantity table. United States v. Caraballo, 552 F.3d 6, 8 (1st Cir.2008). If it had been in effect at the time of Roa-Medina’s original sentencing and at the time of his Rule 35(b) hearing, the district court would have begun its calculations with a base offense level of 32 rather than 34. Roa-Medina attempted to take advantage of the change by filing a motion under 18 U.S.C. § 3582(c)(2), which allows the district courts to modify previously imposed sentences in certain situations to account for retroactive guidelines amendments. The district court denied the motion in a brief order, concluding that Roa-Medina did not qualify for a sentence reduction because he “was subject to a 10 year mandatory minimum sentence.” Roa-Medina now appeals from that decision. II. As a general rule, the district courts may not modify a term of imprisonment once it has been imposed. See 18 U.S.C. § 3582(c). The general rule has exceptions, however. Of relevance here, the Reform Act provides: [I]n the case of a defendant who has been sentenced to a term of imprison ment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ..., the court may reduce the term of imprisonment ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A defendant may seek a sentence reduction under § 3582(c)(2) only if he meets a threshold eligibility requirement: he must have been “[1] sentenced to a term of imprisonment [2]based on a sentencing range [3] that has subsequently been lowered by the Sentencing Commission.” The proposed reduction must also be “consistent with applicable policy statements issued by the Sentencing Commission”— most relevantly, section 1B1.10 of the Guidelines Manual. The district court denied Roa-Medina’s motion for a sentence reduction on the ground that the threshold requirement was not satisfied. Roa-Medina’s appeal from that decision raises a pure question of law, and our standard of review is de novo. United States v. Fanfan, 558 F.3d 105, 107 (1st Cir.2009); Caraballo, 552 F.3d" }, { "docid": "23160136", "title": "", "text": "130 S.Ct. 2683, 2690, 177 L.Ed.2d 271 (2010). Section 3582(c)(2) creates “an exception to the general rule of finality in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered” and made retroactive by the Sentencing Commission. Id. (internal quotation marks omitted) (quoting 18 U.S.C. § 3582(c)(2)). Section 3582(c)(2) allows a district court to reduce a sentence if two conditions are met: (1) the original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission^]” namely § lB1.10(a). 18 U.S.C. § 3582(c)(2); United States v. Guyton, 636 F.3d 316, 318 (7th Cir.2011); USSG § 1B1.10(a)(2), p.s. (Nov.2011). If the “first condition is not met, a district court lacks subject-matter jurisdiction to consider the movant’s request for a sentence reduction under § 3582(c)(2).” United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009); Lawrence, 535 F.3d at 637. As to the second condition, a sentence reduction pursuant to Amendment 706 is not consistent with the Sentencing Commission’s applicable policy statements if Amendment 706 “does not have the effect of lowering the defendant’s applicable guideline range.” USSG § lB1.10(a)(2)(B), p.s. (Nov.2011) (emphasis added). After determining that a sentence reduction is consistent with applicable policy statements, § 3582(c)(2) instructs a district court to consider the § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the Sentencing Commission’s policies is warranted in whole or in part under the particular circumstances of the case. Dillon, 130 S.Ct. at 2692. Further, the Supreme Court has clarified that § 3582(c)(2) “does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modification of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the [Sentencing] Commission.” Id. at 2690. A. Bobby Suggs We turn first to Bobby’s pro se motion. In denying his motion for a sentence reduction, the district court concluded that it" }, { "docid": "22239122", "title": "", "text": "Tr. 28:24-29:2, Feb. 23, 2005.) The district court then granted Main’s request for downward departures, reducing Main’s sentence by seven months for “extraordinary rehabilitation ... while in prison” and by five months for certain time Main served. (Sentencing Tr. 30:24-31:10.) The district court sentenced Main to 84 months’ imprisonment. On May 14, 2008, Main moved to reduce his sentence pursuant to section 3582(c)(2), which allows such motions by any “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Main argued that he was eligible for a reduced sentence under U.S.S.G. § 1B1.10, effective March 3, 2008, which retroactively reduced by two levels the base offense level for crack cocaine offenses covered by U.S.S.G. § 2D1.1. See U.S.S.G. supp. to app. C, amend. 706 (2007) (amending the drug quantity table for U.S.S.G. § 2D1.1); U.S.S.G. supp. to app. C, amend. 713 (2007) (retroactively applying § 2D1.1). The district court denied Main’s motion on the basis that the court lacked authority to modify the sentence under section 3582(c)(2), because Main had been sentenced pursuant to a Rule 11(c)(1)(C) plea agreement and not pursuant to U.S.S.G. § 2D1.1. After granting Main’s motion to reconsider the denial of resentencing, the district court 8 affirmed its decision. This appeal followed. DISCUSSION The only issue on appeal is whether Main is eligible for a reduction in sentence under the crack cocaine amendments, pursuant to section 3582(c)(2). We review de novo the determination of whether his sentence was “based on a sentencing range that was subsequently lowered by the Sen- tenting Commission,” because this determination is a matter of statutory interpretation. United States v. Williams, 551 F.3d 182,185 (2d Cir.2009). Section 3582(c) limits a district court’s resentencing authority by providing that it “may not modify a term of imprisonment once it has been imposed,” except in limited circumstances, such as when the defendant was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Although Main contends that he" }, { "docid": "22834965", "title": "", "text": "a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Scurlark argued that the crack cocaine amendments to the U.S. Sentencing Guidelines — which retroactively reduced base-offense-level calculations for crack-cocaine offenses — reduced his base offense level to 31, making his recommended sentencing range only 121 to 151 months. See United States v. Starks, 551 F.3d 839, 840 (8th Cir.2009) (discussing the crack cocaine amendments to the U.S. Sentencing Guidelines). Scurlark asked the district court to apply a forty-percent downward variance to that range and reduce his sentence accordingly. The district court denied Scurlark’s motion. It found as a matter of law that it could not reduce Scurlark’s sentence under § 3582(c)(2) because Scurlark had been sentenced pursuant to a binding Rule 11(c)(1)(C) plea agreement. Scurlark filed a timely notice of appeal. II. On appeal, Scurlark argues that the district court erred in finding that, under § 3582(c)(2), Rule 11(c)(1)(C) plea agreements prohibit courts from reducing sentences pursuant to subsequent amendments to the U.S. Sentencing Guidelines. We review the court’s legal conclusion de novo. See United States v. Spotted Elk, 548 F.3d 641, 668 (8th Cir.2008). The applicable provision of § 3582(c)(2) provides: The court may not modify a term of imprisonment once it has been imposed except that ... (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sen-fencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). “The policy statement applicable to sentence reductions based on retroactive amendments by the Sentencing Commission is USSG § IB 1.10.” Starks, 551 F.3d at 841. Section 1B1.10 authorizes sentence reductions pursuant to the crack-cocaine amendments. Id. Despite § 3582(c)(2)’s authorization for district courts to reduce sentences pursuant to the crack cocaine amendments, the Government nevertheless argues that § 3582(c)(2) is inapplicable here because Scurlark’s sentence was based" }, { "docid": "19904244", "title": "", "text": "and then through appointed counsel, for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). Collier based this motion on Amendment 706, as modified by Amendment 711, which reduced base offense levels for crack cocaine cases by two levels. USSG App. C, Amend. 706. The district court granted Collier’s motion and reduced his term of imprisonment to 70 months. The government now appeals, arguing that because Collier was sentenced as a career offender, he is not eligible for a sentence reduction under section 3582(c)(2) and Amendment 706. II. Section 3582(c)(2) authorizes a court to reduce a defendant’s sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In Amendments 706, 711, and 713, the Sentencing Commission retroactively lowered the sentencing range for certain drug offenses by amending section 2D1.1 of the Guidelines. Gamble, 572 F.3d at 474. We have held that Amendment 706 is not applicable to defendants who were sentenced under the career offender provisions of the Guidelines. See United States v. Tingle, 524 F.3d 839, 840 (8th Cir.) (per curiam), cert. denied — U.S.-, 129 S.Ct. 473, 172 L.Ed.2d 339 (2008) (“[T]he Sentencing Commission ... did not lower the sentencing range for career offenders under USSG § 4B1.1 ....”); see also United States v. Miranda, 524 F.3d 840, 841 (8th Cir.2008) (per curiam); United States v. Thomas, 524 F.3d 889, 890 (8th Cir.2008) (per curiam). We review de novo “whether the district court properly determined it had the authority to modify a sentence under 18 U.S.C. § 3582(c)(2).” United States v. Baylor, 556 F.3d 672, 673 (8th Cir.2009) (per curiam). Collier argues that his sentences— both the 72-month original sentence and the 120-month resentence — were based not on the career offender enhancement, but on section 2D1.1 of the Guidelines, and that because the Sentencing Commission lowered the offense levels in section 2D1.1, section 3582(c)(2) permits reduction of his sentence. This argument contradicts the record, which clearly indicates that both the parties" }, { "docid": "22429910", "title": "", "text": "the terms of imprisonment under § 3582(c) only if doing so is consistent with applicable policy statements issued by the Sentencing Commission.” Williams, 551 F.3d at 186 (internal quotation marks omitted). As discussed above, Amendment 706 did not lower the defendant’s applicable guideline range. It would therefore be inconsistent with U.S.S.G. § lB1.10(a) to permit reduction of Martinez’s sentence on the basis of the amendments to the crack cocaine guidelines. CONCLUSION The District Court properly found that Martinez is not eligible for a sentence reduction because his sentence under § 4B1.1 was not “based on a sentencing range that was subsequently lowered by the Sentencing Commission,” 18 U.S.C. § 3582(c)(2). Accordingly, the June 26, 2008 order of the District Court is Affirmed. . The United States Sentencing Commission added Amendment 706 to the list of amendments identified in U.S.S.G. § 1B1.10(c) that could be applied retroactively as of March 3, 2008. U.S.S.G.App. C. Amend. 713. . Title 18 U.S.C. § 3582(c)(2) provides: \"The court may not modify a term of imprisonment once it has been imposed except that ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” . We adopt the Third Circuit's view that \"the term 'sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus.” United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009). Therefore to determine which Guideline a defendant’s sentence is \"based on” we look only to the end result of the overall calculus — the career offender sentence — and not to" }, { "docid": "22397000", "title": "", "text": "3, 2008). . A district court may depart from a statutorily mandated minimum sentence on motion of the government under 18 U.S.C. § 3553(e). Melendez v. United States, 518 U.S. 120, 124-30, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) (holding that 5K1.1 letter is not, alone, sufficient to impose sentence below statutorily mandated minimum absent a separate motion under 18 U.S.C. § 3553(e) for substantial assistance); United States v. Phillips, 382 F.3d 489, 499 (5th Cir.2004) (holding that district court may impose a sentence below statutory minimum on the state’s motion under 18 U.S.C. § 3553(e) or (f)) (citing United States v. Solis, 169 F.3d 224, 226-27 (5th Cir.1999)). Here, the government filed such a motion. . If \"a defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statement at issue is the newly amended U.S.S.G. § 1B1.10, which states that when “a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” U.S.S.G. § lB1.10(l)(a). To be eligible for reconsideration under U.S.S.G. § IB 1.10(b)(2), the original sentence must generally have been imposed pre-Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See U.S.S.G. § 1B1.10(b)(2)(B). That condition is satisfied here. . United States v. Evans, No. 08-41259, 587 F.3d 667, 2009 WL 3647042, at *3 (5th Cir. Nov. 5, 2009) (internal citations omitted). . Id. at 671-72, 2009 WL 3647042, at *3. . Id. at 672, 2009 WL 3647042, at *3. . Id. at 671-72, 2009 WL 3647042, at *3. . This court reviews the" }, { "docid": "22436997", "title": "", "text": "denied his request for a COA and dismissed his appeal. United States v. Price, 1998 WL 694501, at *6 (10th Cir. Oct.6, 1998) (unpublished). In 2000, Price sought leave to file a second 28 U.S.C. § 2255 petition, a request we denied. The subject of the present appeal is the district court’s denial of Price’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Price argued that the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which severed the portions of the United States Sentencing Guidelines that made them mandatory, “indirectly lowered” the sentencing range under which he was sentenced and thus conferred on the district court authority to reduce his sentence under § 3582. The district court disagreed, finding that § 3582(c)(2) only authorizes a reduction when the Sentencing Commission reduces the range. Price timely appealed. DISCUSSION Section 3582(c)(2) provides that a court may not modify a term of imprisonment once it has been imposed except that ... [,] in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. By the terms of the statute, then, the court only has authority to modify a sentence when the range has been lowered “by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(o).” We have explained that “ ‘[a] district court is authorized to modify a [d]efendant’s sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so.’ ” United States v. Green, 405 F.3d 1180, 1184 (10th Cir.2005) (quoting United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.1996)) (emphasis added)." }, { "docid": "22964414", "title": "", "text": "definite and firm conviction that the trial court committed a clear error of judgment. A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” United States v. Larry Carter, 463 F.3d 526, 528 (6th Cir.2006) (quoting United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.2005)). Where, as here, the district court does not simply decline to use its authority under § 3582(c)(2) but instead rules that it has no authority to reduce the defendant’s sentence under the statute, the district court’s conclusion that the defendant is ineligible for a sentence reduction is a question of law that is reviewed de novo. See, e.g., United States v. Webb, 565 F.3d 789, 792 (11th Cir.2009); United States v. Sanchez, 562 F.3d 275, 277-78 & n. 4 (3d Cir.2009); United States v. Fanfan, 558 F.3d 105, 107 (1st Cir.2009); United States v. Baylor, 556 F.3d 672, 673 (8th Cir.2009); United States v. Dunphy, 551 F.3d 247, 250 (4th Cir.2009); United States v. Rhodes, 549 F.3d 833, 837 (10th Cir.2008). B. Eligibility for Sentence Reduction Under § 3582(c)(2) Section 3582(c)(2) provides an exception to the normal rule that a “court may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). This subsection allows for modification under the following circumstances: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. § 3582(c)(2). Section 1B1.10 of the Sentencing Guidelines identifies the guidelines amendments which may be applied retroactively and establishes the" }, { "docid": "23160135", "title": "", "text": "not eligible for relief. We review a challenge to the district court’s authority to modify a sentence de novo. United States v. Johnson, 571 F.3d 716, 717 (7th Cir.2009) (quoting United States v. Lawrence, 535 F.3d 631, 634 (7th Cir.2008)). A district court’s decision to deny a reduction in sentence under § 3582(c)(2), however, is reviewed for abuse of discretion. United States v. Young, 555 F.3d 611, 615 (7th Cir.2009); Mark Hall, 582 F.3d at 817. A district court “abuses its discretion when it resolves a matter in a way that no reasonable jurist would, or when its decision strikes us as fundamentally wrong, arbitrary, or fanciful.” United States v. Paul, 542 F.3d 596, 599 (7th Cir.2008). This is a highly deferential standard of review that essentially requires us to determine whether the process by which the district court resolved the § 3582(c)(2) motion was reasonable. Young, 555 F.3d at 615. A term of imprisonment constitutes a final judgment that may not be modified except in limited circumstances. Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2690, 177 L.Ed.2d 271 (2010). Section 3582(c)(2) creates “an exception to the general rule of finality in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered” and made retroactive by the Sentencing Commission. Id. (internal quotation marks omitted) (quoting 18 U.S.C. § 3582(c)(2)). Section 3582(c)(2) allows a district court to reduce a sentence if two conditions are met: (1) the original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission^]” namely § lB1.10(a). 18 U.S.C. § 3582(c)(2); United States v. Guyton, 636 F.3d 316, 318 (7th Cir.2011); USSG § 1B1.10(a)(2), p.s. (Nov.2011). If the “first condition is not met, a district court lacks subject-matter jurisdiction to consider the movant’s request for a sentence reduction under § 3582(c)(2).” United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009); Lawrence, 535 F.3d at 637. As to" }, { "docid": "22980158", "title": "", "text": "applicable guideline range was his career-offender range, not his crack-cocaine range, and Amendment 706 did not affect that range. The district court therefore denied Pembrook’s motion. Pembrook timely appealed. II On appeal, Pembrook claims that the district court erred when it concluded that he was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We review a district court’s denial of a motion to modify a sentence under § 3582(c)(2) for an abuse of discretion. United States v. Perdue, 572 F.3d 288, 290 (6th Cir.2009). A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies the law improperly, or uses an erroneous legal standard. Ibid. A district court may modify a defendant’s sentence only as authorized by statute. Ibid. Section 3582(c)(2) authorizes a district court to reduce a defendant’s sentence when (1) the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The applicable policy statement, U.S.S.G. § 1B1.10, provides that “[a] reduction in the defendant’s term of imprisonment is not consistent with this policy statement [if] ... [a]n amendment [to the Guidelines] does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added). Accordingly, a defendant is ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) unless an amendment to the Sentencing Guidelines lowers the defendant’s “applicable guideline range.” See United States v. Washington, 584 F.3d 693, 700 (6th Cir.2009) (“When Congress granted the district courts authority to reduce otherwise valid sentences pursuant to § 3582(c)(2), it explicitly restricted judicial discretion by incorporating the Commission’s policy statements.... ”). In this case, Pembrook contends that his “applicable guideline range” is the guideline range that the sentencing court referenced after it chose to depart downward pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0 — that is, his crack-cocaine guideline range. Pembrook therefore concludes that he" } ]

[ { "docid": "7467251", "title": "", "text": "first amendment claim should be reversed. IV. Equal Protection Claim I agree with the majority that Times Leader’s equal protection claim should be reversed. Applying the pleading standards applicable to a Rule 12(b)(6) motion to dismiss, I have no doubt that Times Leader’s pleading would permit it to prove that the Department of Environmental Resources has discriminated among newsgatherers on the basis of a perceived favorable or hostile editorial stance. Such proof certainly would entitle Times Leaders to relief for a violation of the equal protection clause. See, e.g., Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1950) (“The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.”); Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir.1973) (“once a forum is open for the expression of views ... under the equal protection clause neither the government nor any private censor may pick and choose between those views which may or may not be expressed”). I write separately to note, however, that the fundamental rights body of equal protection case law is an independent basis for reversing the dismissal of Times Leader's first amendment claim. In a great variety of contexts the Supreme Court has recognized that restrictions upon the exercise of constitutionally protected rights may be justified, even if the government’s interests are legitimate and substantial, only if the restrictions are narrowly tailored to their legitimate objectives. That rule has been applied to restrictions upon expression, see Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 102, 92 S.Ct. 2286, 2291, 2293, 33 L.Ed.2d 212 (1972), and upon the free exercise of religion, see Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). There is no reason why it should not be applied, as well, to the first amendment right of access here involved. The Pennsylvania statutes dealing with access to information, as construed by the" } ]

[ { "docid": "2776008", "title": "", "text": "The members of the Church here are free to practice their religion, albeit in a location separate from M.S. 206B. “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” Smith, 494 U.S. at 877, 110 S.Ct. at 1598. That right has not been taken from the members of the Church. III. The Equal Protection Claim Appellants rely upon Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), to support their claim that the Equal Protection Clause of the Fourteenth Amendment does not allow the exclusion of religious worship services from the public schools. In Mosley, the challenged Chicago ordinance prohibited picketing on public streets near school buildings. In that case, the Court found that under the Equal Protection Clause and the First Amendment, the public street was a traditional public forum where content-based restrictions must be narrowly tailored to serve a compelling governmental interest. Again, appellants rely upon a case that pertains to a traditional public forum. Appellants contend that the strict scrutiny test should be applied in connection with the rules prohibiting religious worship services and instruction. However, there is no fundamental right that has been violated. Appellants say that the School District has infringed on the fundamental rights of freedom of speech and free dom of religion. There is no fundamental right of freedom of speech in a limited forum from which various types of speakers and subjects are properly excluded. Nor is the free exercise of religion a fundamental right in a properly limited public forum. Cf. Fighting Finest, 95 F.3d at 231. It is only when a traditional public forum “is opened up to assembly or speaking by some groups [that] government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Mosley, 408 U.S. at 96, 92 S.Ct. at 2290. IV. The Religious Freedom Restoration Act Claim Appellants contend that the School District violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., by using a clear religious classification to" }, { "docid": "1916182", "title": "", "text": "v. Bradley, 440 U.S. 93, 94 n. 1, 99 S.Ct. 939, 941 n. 1, 59 L.Ed.2d 171 (1979). Traditionally, courts have applied one of two different standards where a statute is challenged on equal protection grounds: strict scrutiny or rational basis. Hoffman v. United States, 767 F.2d 1431, 1434 (9th Cir.1985). Strict scrutiny is generally applied where the classification challenged in the statute is based on race, ancestry or alienage or the statute infringes upon a fundamental right. Id. Plaintiffs, relying on Police Department of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), claim that this Court should evaluate FACE under the strict'scrutiny standard because it infringes on the right of free speech. In Mosley, the Supreme Court considered an equal protection challenge to an ordinance regulating picketing next to a school. The ordinance allowed peaceful picketing on the subject of a school’s labor management dispute but prohibited any other peaceful picketing. The Court found that because the ordinance affected First Amendment interests, the Equal Protection Clause required that the ordinance be narrowly tailored to achieve its legitimate objectives. Id. at 101, 92 S.Ct. at 2293. Although the Court recognized that the City had an interest in preventing school disruption, the Court found that the City had failed to show that the ordinance was narrowly tailored because it had failed to show that “peaceful” nonlabor picketing was any more disruptive than “peaceful” labor picketing. Id. at 99-100, 92 S.Ct. at 2292. The distinction between Mosley and the case presently before the Court is that the Court finds that FACE does not infringe on a constitutionally protected right. As discussed in Section IV.B.l.a, supra, FACE does not regulate protected speech or expressive conduct. Consequently, the heightened standard of scrutiny applied in Mosley is not applicable and the rational basis test is to be applied instead. Clearly, in light of its legislative history, FACE withstands scrutiny under the rational basis test. Moreover, even if Mosley was applicable in this case and a heightened standard of scrutiny was to be applied, the Court finds that FACE" }, { "docid": "12998891", "title": "", "text": "that TCI’s complaint did in fact state a First Amendment claim, we must now reexamine the dismissal of the Fifth Amendment claim as well, bearing in mind that none of the District Court’s subsidiary factual conclusions can be adopted unless they are clearly alleged in the complaint. From the complaint we glean three factual assumptions that must be made in this Rule 12(b)(6) determination: First, that the Air Force had dedicated the necessary property to cable television transmission; second, that TCI had been denied access to this property; and third, that there were no reasons for not allowing two cable companies to use that property. See Complaint, supra, at if 118, 17-18, 20. Using these factual allegations, we now apply Fifth Amendment law to determine whether a claim was stated by TCI. The Due Process Clause of the Fifth Amendment has been held to include an equal protection provision. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under equal protection doctrine, differential treatment of parties is constitutional only if adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972). As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement if it is not" }, { "docid": "3166020", "title": "", "text": "538 (quoting Scarbrough, 470 F.3d at 260). “When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). “[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The Michigan statute restricts some individuals from exercising a fundamental right, freedom of expression, while permitting other individuals with more acceptable messages to exercise that very right. The First Amendment “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Taxpayers for Vincent, 466 U.S. at 804, 104 S.Ct. 2118 (citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 533-36, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Carey v. Brown, 447 U.S. 455, 462-63, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). Yet that is precisely what the Michigan anti-begging statute does, without any clear linkage between the statute and the interests the statute purports to serve. The statute runs afoul of the Equal Protection Clause, because the regulated activity is speech, thus implicating First Amendment issues. It is important to recognize that the Equal Protection analysis largely duplicates the First Amendment analysis in this case. The government has broad discretion to regulate conduct by drawing lines. It is only when the line-drawing impinges directly on fundamental" }, { "docid": "14737540", "title": "", "text": "447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“When gov- ernment regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”); Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Be- cause picketing plainly involves expressive conduct within the protection of the First Amendment, discriminations among pick- ets must be tailored to serve a substantial governmental interest.”); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (“ ‘[0]nly a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amend- ment freedoms.’”) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). As inthe First Amendment context, however, the defendants have not had the opportunity to try to show that the ordi- nance meets this test. We thus direct that the district court address this issue on remand. on remand. CONCLUSION For the reasons set out above, we conclude that the district court’s judgment must be AFFIRMED in regard to the denial of standing to bring First Amendment and equal protection challenges to the amended act, but REVERSED as to standing to bring First Amendment and equal protection challenges to the city ordinance. We also REVERSE the judgment as to the merits of both the First Amendment and equal protection claims and REMAND the case for further proceedings consistent with this opinion. . The district court’s opinion significantly misconstrues Lac Vieux's First Amendment claim. The district court's opinion states that “Lac Vieux appears to allege that it fought against gambling in Detroit\" and the district court's analysis relies heavily on the fact that this claim is not supported in the record. The court notes that the record does not indicate “a specific or general opposition” to the initiatives by Lac Vieux, and therefore concludes that there is “no basis in the record for saying" }, { "docid": "402079", "title": "", "text": "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). Classifications affecting fundamental rights, however, must survive heightened scrutiny. Id. The Supreme Court has noted that “[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980) (emphasis supplied) (finding equal protection violation based on discrimination among expressive activities in public forum); see also Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96-97, 92 S.Ct. 2286, 2290-91, 33 L.Ed.2d 212 (1972) (same). That exacting standard of review is not applicable here, however, because “[t]he key to those decisions [Carey and Mosley ] ... was the presence of a public forum.” Perry, 460 U.S. at 55, 103 S.Ct. at 960. Here, where a nonpublic forum is involved and where, as we have found, there is no First Amendment violation, the Act need only survive rational-basis analysis. See id. at 54-55, 103 S.Ct. at 959-60; Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231 (2d Cir.1996). The Act’s distinction between written and visual forms of expression, and its ban on lascivious expression contained in audio, video, and periodical materials, but not in books, are rationally related to a legitimate governmental interest. Congress could rationally have concluded that exchanges do not trade extensively in books containing sexually explicit material and that, consequently, it was unnecessary to include books under the Act’s prohibition. Congress could also have rationally concluded that visual forms of lascivious expression are more prevalent, more likely to be noticed, or more provocative than written materials, and that accordingly there was a greater need to regulate such materials. See Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) (“The legislature may select" }, { "docid": "1360662", "title": "", "text": "manner to ban those racially divisive symbols that the school reasonably forecasts will substantially and materially disrupt schoolwork and school discipline. We therefore hold that the dress code’s ban on racially divisive symbols is narrowly tailored to the state and the school’s substantial interest in educating students, and we affirm the district court’s grant of summary judgment to Defendants-Appellees on Plaintiffs-Appellants’ Equal Protection claim. We reject Plaintiffs-Appellants’ argument that the instant case is analogous to the Supreme Court’s decision in Police Department of City of Chicago v. Mosley. In Mosley, the Court invalidated a city ordinance that placed geographic and temporal restrictions on picketing outside a school but exempted peaceful labor picketing. 408 U.S. at 92-94, 92 S.Ct. 2286. The Court concluded that the ordinance’s content-based restriction on speech could be upheld only if necessary to serve a substantial government interest in a narrowly tailored manner. Id. at 98-99, 92 S.Ct. 2286. The Court further determined that the ordinance was not narrowly tailored to the city’s “interest in preventing disruption by the ... excesses of some nonlabor picketing” because it targeted “both peaceful and violent [nonlabor] picketing.” Id. at 101-02, 92 S.Ct. 2286. The school argues that Mosley is not applicable because it involved a challenge to a facially discriminatory rather than a facially neutral regulation on speech. But that is not the critical distinction between the cases; as stated above, we apply strict scrutiny under the Equal Protection Clause to a statute infringing on speech protected by the First Amendment, whether plaintiffs bring a facial or as-applied challenge. The dispositive distinction between Mosley and the instant case is that Mosley involved adult speech in a public forum, while the instant case involves student speech in a public school, which is a limited public forum. Thus, Tinker sets the guiding standard for the instant case while that was not true of Mosley. Plaintiffs-Appellants argue that under Mosley, the school needs to show that the Confederate flag is “clearly more disruptive” than other flags. Plaintiffs-Appellants Br. at 16 (quoting Mosley, 408 U.S. at 100, 92 S.Ct. 2286). Plaintiffs-Appellants argue further that" }, { "docid": "2886611", "title": "", "text": "by refusing to federalize the protection of any of the state-created citizenship rights listed in Corfield, rendered the Fourteenth Amendment Privileges and Immunities Clause \"a vain and idle enactment, which accomplished nothing.” Slaughter-House, 83 U.S. (16 Wall.) at 96 (Field, J., dissenting). . Compare Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Due Process Clause protects the freedom of contract) with Slaughter-House, 83 U.S. (16 Wall.) at 76-77 (Privileges and Immunities Clause does not protect the unenumerated rights listed in Corfield). . See Edwards v. California, 314 U.S. at 178, 62 S.Ct. at 169 (Douglas, J., concurring). . See, e.g., Note, supra note 12, at 1935. . York was the capital of the United States between September 1777 and June 1778. See 29 Encyclopaedia Americana 643 (1954). Presumably, the Continental Congress moved away for reasons other than excessive local traffic. . \"[I]t is settled beyond question that the transportation of persons is ‘commerce’....” 314 U.S. at 172, 62 S.Ct. at 166. . Compare, e.g., Police Dep't v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (striking down, on Equal Protection grounds, an ordinance infringing upon the First Amendment rights of some, but not all, picketers). .The leading case is Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), which struck down a statute allowing the sterilization of habitual larcenists, but not habitual embezzlers. The Skinner opinion emphasized both the importance of the right to bear children, see, e.g., id. at 541, 62 S.Ct. at 1113 (“We are dealing here with legislation which involves one of the basic civil rights of man.”), and the invidiousness that the Court perceived in the supposed class-based distinction between larcen ists and embezzlers, see, e.g., id. (\"When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”). The Court could not rely entirely on the former because" }, { "docid": "14669575", "title": "", "text": "speaking about education, we think that it is similarly applicable to garbage collection. “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” 411 U.S. at 33-35, 93 S.Ct. at 1297. Since multiple dwelling ownership is not an inherently suspect classification and since garbage collection is not a fundamental right, the test to be applied is whether the city has a rational basis for distinguishing between condominium owners in large multiple unit residential buildings and owners of single housing units. The city contends and we agree that the ordinance does not distinguish between types of ownership but between types of building — single family home versus large multiple unit buildings— and that the reason for this distinction is that the owner(s) of large residential buildings with a great amount of garbage have more effective bargaining power with private scavenger services than the owner of a single unit. The city’s distinction between types of residential structures in providing efficient sanitation is, in our judgment, reasonable. Accordingly, the ordinance does not violate the equal protection clause of the Fourteenth Amendment. The dismissal of plaintiffs’ complaint is affirmed. . The" }, { "docid": "402078", "title": "", "text": "violate the First Amendment. B. The Equal Protection Guarantee of the Fifth Amendment’s Due Process Clause The district court also found that the Act violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Specifically, it found that the Act’s disparate treatment of books and periodicals (barring only the latter), and its restrictions on pictorial and audio expression, but not on written text, violated the Fifth Amendment’s guarantee of equal protection. See General Media, 952 F.Supp. at 1082. We approach equal protection claims under the Fifth Amendment in the same way as we would such claims under the Fourteenth Amendment. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). In considering whether legislation violates equal protection principles, “[a]t a minimum, a statutory classification must be rationally related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988). Under this analysis, a statutory classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). Classifications affecting fundamental rights, however, must survive heightened scrutiny. Id. The Supreme Court has noted that “[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980) (emphasis supplied) (finding equal protection violation based on discrimination among expressive activities in public forum); see also Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96-97, 92 S.Ct. 2286, 2290-91, 33 L.Ed.2d 212 (1972) (same). That exacting standard of review is not applicable here, however, because “[t]he key to those decisions [Carey and Mosley ] ... was the presence of a public forum.” Perry, 460 U.S." }, { "docid": "8490296", "title": "", "text": "dismiss these substantive due process claims. 7. Plaintiffs’ Equal Protection Rights Under the Fourteenth Amendment According to Plaintiffs, they are being treated more restrictively than other civilly committed patients. They allege that their conditions are more punitive than those under which all other civilly committed persons are held. For one example, they allege that other civilly-committed persons are given priority in hiring for remunerative positions. Even though Plaintiffs do not constitute a suspect class, heightened scrutiny may be required where fundamental interests are at issue. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). This court upheld application of a “heightened scrutiny standard” when evaluating an equal protection violation under Washington State’s Sexually Violent Predator Statute. See Young v. Weston, 176 F.3d 1196, 1201 (9th Cir.1999), rev’d on other grounds, Seling, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734. While Young was decided in 1999, it rested on a firmly established principle in existence at the time of events in question: that heightened scrutiny will be applied where a fundamental liberty interest is at stake. See Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Plaintiffs may be able to claim violations of several clearly established fundamental rights: a liberty interest in freedom from bodily restraint and personal security, Youngberg, 457 U.S. at 315-316, 102 S.Ct. 2452, and a fundamental right to access the courts, as described below. Accordingly, we agree with Plaintiffs that heightened scrutiny is the standard for equal protection claims implicating these fundamental rights. And we further observe that Plaintiffs, in line with their allegations, may be able to show that the differ-' ential treatment between them and other civilly committed persons violates equal protection because such treatment does not meet heightened scrutiny. At the same time, we cannot say that it is firmly established that every condition of an SVP’s confinement is subject to heightened scrutiny. In the prison setting, we have" }, { "docid": "11522426", "title": "", "text": "e.g., Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228 n. 3, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (invalidating, as violation of Press Clause, sales tax regime that taxed general interest magazines but exempted certain other journals, but noting that the First Amendment claims were “obviously intertwined with interests arising under the Equal Protection Clause”); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 94-95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (invalidating, as violation of Equal Protection Clause, anti-picketing law that “treat[ed] some picketing differently from others” because of its subject matter, but noting that “the equal protection claim in this case is closely intertwined with First Amendment interests”); Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (invalidating disorderly conduct convictions as violations of “the right to equal protection of the laws” in the exercise of Speech and Free Exercise Clause freedoms). Because this area of First Amendment doctrine (among others) is far from a model of clarity, the Court must first determine what level of scrutiny is appropriate. When deciding cases solely on First Amendment grounds, courts often require that “a significant impairment of First Amendment rights must survive exacting scrutiny.” Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.); see, e.g., Ark. Writers’ Project, 481 U.S. at 231, 107 S.Ct. 1722 (“In order to justify [content-based] differential taxation [of certain types of magazines], the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”); see also SKF USA Inc. v. U.S. Customs & Border Protection, 583 F.3d 1340, 1343 (Fed.Cir.2009) (Linn, J., dissenting from denial of rehearing en banc) (arguing, joined by three other judges, that congressional statute imposed “an unconstitutional viewpoint-discriminatory restriction on political speech and petitioning activity that cannot survive strict scrutiny”). Similarly, in cases decided on equal protection grounds, “statutes affecting First Amendment interests [must] be narrowly tailored to their legitimate objectives.” Mosley, 408 U.S. at 101, 92 S.Ct. 2286. But while some of these cases have" }, { "docid": "9406921", "title": "", "text": "not constitute a first amendment violation. IV. ETI’S EQUAL PROTECTION CLAIMS Similar to the allegation that the “singling out” of ETI constitutes a first amendment violation, ETI maintains that this same discriminatory treatment contravenes the equal protection clause of the fourteenth amendment. ETI’s claim is premised on the assertion that the City has conditioned ETI’s exercise of first amendment rights upon certain required payments. Because this scheme implicates an infringement of a fundamental right, ETI argues that the City’s regulation must survive strict scrutiny review in order to pass constitutional muster. ETI contends that other members of the communications media use the public rights-of-way in a manner identical to ETI’s use. As ETI’s use of the public rights-of-way provides the basis for the City’s imposition of franchise and access obligations, ETI asserts that the City lacks a compelling interest for justifying discriminatory classification of cable television operators. The Court does not dispute ETI’s characterization of the applicable law. Clearly, where a legislative classification impermissibly interferes with the exercise of fundamental rights, the fourteenth amendment subjects the governmental action to strict judicial scrutiny. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520, 524 (1976) (per curiam). Thus, as explained by the Supreme Court, “[t]he Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives.” Police Department of the City of Chicago v. Mosely, 408 U.S. 92, 101, 92 S.Ct. 2286, 2293, 33 L.Ed.2d 212, 220 (1972) (citations omitted). “[T]he crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Id., 408 U.S. at 95, 92 S.Ct. at 2289, 33 L.Ed.2d at 216 (citations omitted). In consideration of this constitutional standard, the Court concludes that the instant regulatory scheme is not violative of the equal protection clause. Initially, as has previously been set forth, the Court finds that the City of Erie possesses a compelling interest for regulating cable television. With regard to the payment of franchise and other related fees, justification for regulation lies in the fact that local" }, { "docid": "12998892", "title": "", "text": "adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972). As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement if it is not rationally related to a legitimate governmental interest. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959. TCI’s allegation states that the government has no reasons, legitimate or compelling, for excluding one television station and not another. Consequently, although the ultimate merit of such a claim may be extremely doubtful unless TCI’s First Amendment rights have in fact been burdened, dismissal is not appropriate. The complaint states a claim and, regardless of the likelihood of success, if the complaint states a claim it must withstand the Rule 12(b)(6) motion to dismiss. Thus the District Court’s dismissal of TCI’s Fifth Amendment claim was incorrect and must be reversed. TCI’s brief also presents an argument that centers around the statutory easement provision which authorizes the type of easement at issue here to be granted by the Air Force. See 16 U.S.C. § 420 (1982); 43 U.S.C. § 961 (1982). Although the content of this argument is not entirely clear, it appears to break down into one purely statutory claim — that the Air Force, by granting" }, { "docid": "7566912", "title": "", "text": "right to engage in free speech, strict scrutiny is warranted.” Brown, 543 F.Supp.2d at 485. Although it is true generally under the Equal Protection Clause that legislative actions are subject to strict scrutiny when they \"impermissibly interferef ] with the exercise of a fundamental right,” id. (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976)), this standard does not apply to content-neutral time, place, and manner restrictions valid under Ward's First Amendment test. Whereas strict scrutiny demands that a challenged regulation be the least restrictive means of achieving a compelling state interest, see ACLU, 534 F.3d at 190, Ward’s intermediate-scrutiny standard asks whether a content-neutral time, place, and manner regulation is narrowly tailored (but not necessarily the least intrusive means) to serve a significant state interest. If every time, place, and manner regulation were subject to strict scrutiny under the Equal Protection Clause simply because it burdened constitutionally protected speech, Ward's intermediate-scrutiny test would be rendered obsolete. Instead, it is only content-based time, place, and manner regulations that call for strict scrutiny— whether viewed through the lens of First Amendment or Equal Protection doctrine. See McCullen, 571 F.3d at 178 n. 2 (explaining that the Court's conclusion that the challenged statute was facially content-neutral \"also serves to defeat the plaintiffs' equal protection” claim); McGuire I, 260 F.3d at 49 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), for the proposition that “the equal protection interests involved in the differential treatment of speech are inextricably intertwined with First Amendment concerns”). Supreme Court precedent supports this view. Where the Court has applied strict scrutiny to time, place, and manner regulations under the Equal Protection Clause, the restrictions were content-based. See, e.g., Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (invalidating statute that generally prohibited picketing of residences or dwellings but exempted peaceful picketing of employment sites involved in labor disputes); Mosley, 408 U.S. 92, 92 S.Ct. 2286 (invalidating ordinance that proscribed picketing near schools, with exemption for schools" }, { "docid": "1916181", "title": "", "text": "In that case the Court found that the terms “obstruct” and “unreasonably interfere” clearly did not require any guessing as to their meaning. Id. at 616, 88 S.Ct. at 1338. Finally, the Court disagrees that FACE is analogous to the statute in Dorman v. Satti, 862 F.2d 432 (2nd Cir.1988), cert, denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989). In Dorman, the statute at issue proscribed interfering with or harassing another person engaged in the lawful taking of wildlife. Unlike FACE, the statute in Dorman was found unconstitutionally vague because it did not define the terms “interfere with” and “harass.” In this case, “interfere with” is defined as “to restrict a person’s freedom of movement.” The meaning of such language is clearly understood by an individual of average intelligence. 2. Fifth Amendment Plaintiffs also, argue that FACE is unconstitutional because it violates the Fifth Amendment. The Supreme Court has explained that the Due Process Clause of the Fifth Amendment forbids the federal government from denying individuals equal protection of the laws. Vance v. Bradley, 440 U.S. 93, 94 n. 1, 99 S.Ct. 939, 941 n. 1, 59 L.Ed.2d 171 (1979). Traditionally, courts have applied one of two different standards where a statute is challenged on equal protection grounds: strict scrutiny or rational basis. Hoffman v. United States, 767 F.2d 1431, 1434 (9th Cir.1985). Strict scrutiny is generally applied where the classification challenged in the statute is based on race, ancestry or alienage or the statute infringes upon a fundamental right. Id. Plaintiffs, relying on Police Department of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), claim that this Court should evaluate FACE under the strict'scrutiny standard because it infringes on the right of free speech. In Mosley, the Supreme Court considered an equal protection challenge to an ordinance regulating picketing next to a school. The ordinance allowed peaceful picketing on the subject of a school’s labor management dispute but prohibited any other peaceful picketing. The Court found that because the ordinance affected First Amendment interests, the Equal Protection Clause required" }, { "docid": "14737539", "title": "", "text": "L.Ed.2d 465 (1988) (“Classifications based on race or national origin and classifications affecting fundamental rights are given the most exacting scrutiny.”). If the statute does not involve a suspect classification or affect a fundamental right, then it will be subject to rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”). The district court found that the ordinance did not implicate the First Amendment, or any other fundamental right for that matter, and therefore applied rational basis review. However, in view of our holding that the ordinance does affect rights under the First Amendment, it follows that it is subject to strict scrutiny review&emdash;because it implicates a constitu- tionally protected fundamental right, the right to freedom of speech. See Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“When gov- ernment regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”); Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Be- cause picketing plainly involves expressive conduct within the protection of the First Amendment, discriminations among pick- ets must be tailored to serve a substantial governmental interest.”); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (“ ‘[0]nly a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amend- ment freedoms.’”) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). As inthe First Amendment context, however, the defendants have not had the opportunity to try to show that the ordi- nance meets this test. We thus direct" }, { "docid": "8744576", "title": "", "text": "The cases cited by Michel in support of his equal protection claim are, for the most part, inapplicable here. Michel cites two cases for the proposition that the government cannot treat similarly situated speakers differently without any justification or rationale — Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), and Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). These cases do generally stand for the proposition that the government must give some rationale for different treatment of similarly situated speakers. Carey, 447 U.S. at 461-62, 100 S.Ct. 2286 (“When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”); Mosley, 408 U.S. at 98, 92 S.Ct. 2286 (“And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing others to use the streets to voice their opinions on other subjects also amounts ... to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.”) (quoting Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)). However, both Carey and Mosley deal with individual First Amendment speech rights, not the First Amendment protections associated with commercial speech. By comparison, the Friedman Court squarely addressed equal protection in the context of commercial speech. That Court upheld as constitutional § 2.02 of the Texas Optometry Act, a requirement “that four of the six members of the State’s regulatory board ... be members of the Texas Optometric Association, a professional organization of optometrists.” Friedman, 440 U.S. at 19, 99 S.Ct. 887. In Friedman, the Court used a rational basis test to uphold the requirement. Id. at 17, 99 S.Ct. 887 (“The history of the [Texas Optometry] Act shows that § 2.02 is related reasonably to the State’s legitimate purpose of securing a Board that will administer the Act faithfully.”). The relatively low bar of the rational" }, { "docid": "5643070", "title": "", "text": "because the exemptions are not tailored to serve a compelling state interest. Pis.’ Supp. Mem. at 20. The defendant responds that because the Act only infringes upon the First Amendment rights of those subjected to it in a “minor” way, it should only be subjected to “rational basis” scrutiny and upheld because the exemptions are rationally related to the government interests that the Act promotes. Def.’s Supp. Mem. at 33-35. Although the Court agrees with the plaintiffs that the exemptions contained in the Act must be subjected to heightened scrutiny, the Court finds that the justifications supporting the exemptions satisfy even that level of scrutiny. It is now well-settled that if a statute discriminates between persons exercising their First Amendment rights (placing greater or lesser burdens on the exercise of those rights by some, but not others), based upon the content of their speech, the Equal Protection Clause requires that it be “finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980); see also California Medical Ass’n v. Federal Election Comm’n, 453 U.S. 182, 200, 101 S.Ct. 2712, 2724, 69 L.Ed.2d 567 (1981); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 98-99, 92 S.Ct. 2286, 2291-92, 33 L.Ed.2d 212 (1972); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968). Clearly, the requirements of the Act burden protected First Amendment rights substantially, although not unconstitutionally. As previously discussed, the State’s interest in preventing fraud or overreaching is indeed substantial. Schaumburg, 444 U.S. at 637-38, 100 S.Ct. at 836-37. It also cannot be disputed that the exemptions from the requirements imposed by the Act are content-based exemptions, because only solicitations for contributions for charitable purposes are excluded. See Md.Com. Law II Code Ann. § 14-2601(c)(2)(iv); Md.Bus.Reg.Code Ann. § 6-101 (1993); cf. Mosley, 408 U.S. at 98, 92 S.Ct. at 2291 (picketing not permitted near schools except peaceful picketing arising out of labor disputes). Thus, the only question remaining is whether" }, { "docid": "1360661", "title": "", "text": "See R.A.V., 505 U.S. at 384 n. 4, 112 S.Ct. 2538 (noting that the Supreme “Court itself has occasionally fused the First Amendment into the Equal Protection Clause ... with the acknowledgment ... that the First Amendment underlies its analysis”). Because the distinction between the wearing of racially divisive and racially inclusive symbols pertains to “expressive conduct within the protection of the First Amendment,” this provision of the school’s dress code “must be [narrowly] tailored to serve a substantial governmental interest.” Mosley, 408 U.S. at 99, 101, 92 S.Ct. 2286. The government interest in this case — the school’s mission to educate its students in a learning environment conducive to fostering both knowledge and democratic responsibility — is undeniably a substantial one. The question of whether the dress code’s ban on racially divisive symbols is narrowly tailored to that purpose asks us to inquire whether the ban meets the standard set forth in Tinker. As we have demonstrated above, the evidence on the record establishes that the school enforces the dress code in a viewpoint-neutral manner to ban those racially divisive symbols that the school reasonably forecasts will substantially and materially disrupt schoolwork and school discipline. We therefore hold that the dress code’s ban on racially divisive symbols is narrowly tailored to the state and the school’s substantial interest in educating students, and we affirm the district court’s grant of summary judgment to Defendants-Appellees on Plaintiffs-Appellants’ Equal Protection claim. We reject Plaintiffs-Appellants’ argument that the instant case is analogous to the Supreme Court’s decision in Police Department of City of Chicago v. Mosley. In Mosley, the Court invalidated a city ordinance that placed geographic and temporal restrictions on picketing outside a school but exempted peaceful labor picketing. 408 U.S. at 92-94, 92 S.Ct. 2286. The Court concluded that the ordinance’s content-based restriction on speech could be upheld only if necessary to serve a substantial government interest in a narrowly tailored manner. Id. at 98-99, 92 S.Ct. 2286. The Court further determined that the ordinance was not narrowly tailored to the city’s “interest in preventing disruption by the ... excesses of" } ]

[ { "docid": "14552714", "title": "", "text": "has a valid claim. If it must be decided, the district court should be given an opportunity to decide the same. We, therefore, reverse and remand for a full hearing not inconsistent with the opinions herein expressed. . 11 Code of Georgia Annotated (1952), Title 28: 28-101. Relation of debtor and creditor. — Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them. 28-102. Rights of creditors favored.— The rights of creditors shall be favored by the courts, and every remedy and facility afforded them to detect, defeat, and annul any effort to defraud them of their just rights. 28-201. Enumeration of void acts.— The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void, viz.: 1. Every assignment or transfer by a debtor, insolvent at the time, of real or personal property, or choses in action of any description, to any person, either in trust or benefit of, or in behalf of, creditors, where any trust or benefit is reserved to the assignor or any person for him. 2. Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description, had or made with intention to delay or defraud creditors, and such intention known to the party taking. A bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid. 3. Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance. 28-202. Innocent subsequent vendee. —Where a sale void as against creditors is made, and the property has not been seized, and no step taken to set the sale aside, the fraudulent vendee can convey to an innocent purchaser from him, for value and without notice of the fraud, a title good as against the claims or judgments of the defrauded creditors. . § 5001. Imposition, rate," } ]

[ { "docid": "21592114", "title": "", "text": "suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appears that he had notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. Historically, this section of the Code has provided protection to creditors fraudulently deprived of their interest in property. Christian v. Gray Endowment, 33 F.2d 759, 760 (4th Cir.1929) (holding that the predecessor to § 55-80 “makes void as to creditors whose debts were then in existence a voluntary conveyance”); Springfield Furniture, Inc. v. Manson, 145 B.R. 520 (Bankr.E.D.Va.1992) (providing transactions made with intent to defraud creditors may be set aside); Johnston Memorial Hospital v. Hess, 44 B.R. 598, 600 (W.D.Va.1984) (“A fraudulent transfer is void, as to creditors, under Virginia law.”); Colonial Investment Co., Inc. v. Cherrydale Cement Block Co., Inc., 194 Va. 454, 73 S.E.2d 419, 422 (1952) (“Code § 55-80 provides that every conveyance made with intent to hinder, delay or defraud creditors, shall be void, not only as to existing creditors, but as to purchasers for value with notice of such fraudulent intent.”). No Virginia cases have allowed a debtor to bring an action under § 55-80 to set aside a conveyance resulting from a foreclosure sale. Only two “other persons,” besides creditors, have come within the meaning of the statute: first, spouses who are granted rights upon desertion have been found to be “other persons” protected by § 55-80 against the fraudulent transfers of the deserting spouse. Crowder v. Crowder, 125 Va. 80, 99 S.E. 746, 747 (1919). The second class of “other persons” is comprised of individuals who intend to bring a tort suit against a debtor who, in turn, attempts to thwart recovery by fraudulently transferring his assets. Bruce v. Dean, 149 Va. 39, 140 S.E." }, { "docid": "21985575", "title": "", "text": "intent to defraud is proven, the conveyance will be set aside regardless of the adequacy of the consideration given.” In re Sharp Int’l Corp., 403 F.3d 43, 56 (2d Cir.2005) (internal citations and quotation marks omitted). Because intent to defraud is an element under section 276 a party seeking to set aside a fraudulent conveyance under this section must plead with the particularity required by Fed.R.Civ.P. 9(b). See Atlanta Skipping Corp., Inc. v. Chemical Bank, 818 F.2d 240, 251 (2d Cir.1987). “However, because direct proof of fraudulent intent is difficult to obtain, such intent may be inferred from circumstantial evidence, such as the inadequacy of consideration received, the close relationship between the parties to the transfer, information that the transferor was [made] insolvent by the conveyance, suspicious timing of transactions or existence of pattern after the debt had been incurred or a legal action against the debtor had been threatened, or the use of fictitious parties.” A.J. Heel Stone, 2006 WL 1458292, at *3 (citing Eclaire Advisor Ltd., 375 F.Supp.2d at 268-69 (calling these types of inferences “badges of fraud”)); see also Fromer v. Yogel, 50 F.Supp.2d 227, 247 (S.D.N.Y.1999) (“Under N.Y. DCL § 276, [fraudulent] intent need not be proven by direct evidence but may be inferred (a) where the transferor has knowledge of the creditor’s claim and knows that he is unable to pay it; (b) where the conveyance is made without fair consideration; or (c) where the transfer is made to a related party.”) (internal quotation marks omitted). Plaintiffs’ complaint adequately pleads fraudulent intent on the part of the transferor&emdash;namely, the defrauding defendants&emdash;who are alleged elsewhere in the complaint to be perpetrators of a Ponzi scheme. In such cases, courts have found that the debtor’s intent to hinder, delay or defraud is presumed to be established. See In re Manhattan Investment Fund Ltd., 310 B.R. 500, 505 (Bankr.S.D.N.Y.2002) (citing cases holding that debtor operating a Ponzi scheme presumed to have made transfers with fraudulent intent); see also Quilling v. Stark, 05 Civ.1976, 2006 WL 1683442, at *2 (N.D.Tex. June 19, 2006) (finding alleged Ponzi scheme makes transfer" }, { "docid": "6882502", "title": "", "text": "conveyances made by debtors without actual intent to defraud, provides: ’ Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration. M.C.L. § 566.14. Section 7, which requires proof of actual intent, provides: Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. M.C.L. § 566.17. Thus, a fraudulent conveyance may be proved either by demonstrating that a conveyance was made by a transferor who was either insolvent at the time or rendered insolvent as a result of the conveyance or that the transferor acted with intent to defraud. The party seeking to have a conveyance set aside as ixaudulent has the burden of producing evidence to support his claim. See Dean v. Torrence, 299 Mich. 24, 35, 299 N.W. 793, 797 (1941). Even though transactions between a husband and wife must be closely scrutinized, the party alleging that the conveyance was fraudulent still bears the burden of proof. See id.; Nicholson v. Scott, 50 F.Supp. 209, 212 (E.D.Mich.1943). Actual intent to defraud may be shown through “badges of fraud,” or “[s]urrounding cir cumstances which usually accompany an intent to hinder, delay or defraud creditors and from which fraud may be inferred....” Bentley v. Caille, 289 Mich. 74, 78, 286 N.W. 163, 164 (1939) (en banc). “Badges of fraud” include lack of consideration, a close relationship between transferor and transferee, pendency or threat of litigation, financial difficulties of the transferor, and retention of possession or control by the transferor. Coleman-Nichols v. Tixon Corp., 203 Mich.App. 645, 660, 513 N.W.2d 441, 449 (1994). Such circumstances are not conclusive evidence of fraud, “but may be strong or weak depending upon their nature and number occurring in the same case.” Id. Sandra contends that the Government cannot attack the August 28, 1989, conveyance from" }, { "docid": "9497342", "title": "", "text": "proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Therefore, the Court finds that the transfer from Nicholas J. Alfano and Rita Alfano to Nicholas A. Alfano and Lisa Alfano of the property located at 11 Alden Lane, Centereach, New York, was a fraudulent conveyance as defined by Section 273 of the Debtor and Creditor Law of New York. 2. Fraudulent Conveyance Pursuant to Section 276 The Government also moves to set aside the transfer pursuant to Section 276 of the New York State Debtors and Creditors Law. Section 276 provides: Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder delay or defraud either present or future creditors, is fraudulent as to both present and future creditors. N.Y.Debt. & Cred.Law § 276. As explained by the Second Circuit, “unlike section 273 which creates constructive fraud by virtue of the lack of fair consideration, section 276 focuses on the ‘actual intent’ of the transacting parties. Indeed, where actual intent to defraud creditors is proven, the conveyance will be set aside regardless of the adequacy of the consideration given.” McCombs, 30 F.3d at 327-28. However, intent can be inferentially proven. See In re Montclair Homes, 200 B.R. 84, 97 (Bankr.E.D.N.Y.1996) (finding that intent does not need to be shown by direct evidence, and is normally inferred from the circumstances surrounding the transfer). Still, actual intent to defraud must be proven by the party seeking to set aside the conveyance by clear and convincing evidence. McCombs, 30 F.3d at 328 (citing Marine Midland Bank v. Murkoff, 120 A.D.2d 122, 126, 508 N.Y.S.2d 17, 20 (1986) & ACLI Gov’t Securities v. Rhoades, 653 F.Supp. 1388, 1394 (S.D.N.Y.1987)). Factors utilized by courts to circumstantially infer actual intent — which have been termed “badges of fraud” — include: (1) whether the consideration received was adequate or existent at all; (2) whether the transferee was a relative; (3) whether the debtor retained possession; and (4) whether the debtor’s financial condition change after the transfer. In re Kaiser," }, { "docid": "23666524", "title": "", "text": "with intent to delay, hinder, or defraud creditors, purchasers, or other persons of or from that they are or may be lawfully entitled to shall, as to such creditors, purchasers, or other persons, their representatives or assignees be voided. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of the granter. Va.Code § 55-80 (Repl.Vol.1981). The statute is merely declaratory of the common law, Shufeldt v. Jenkins, 22 F. 359 (4th Cir.1884) and, stated simply, provides that a fraudulent conveyance is voidable. See Fidelity & Deposit Co. v. Studds 136 F.Supp. 756 (E.D.Va.1956); Norris & Co. v. Jones, 93 Va. 176, 24 S.E. 911 (1896). To come within the scope of Va. Code § 55-80, the transfer or act assailed must be done with intent to hinder, delay or defraud. 9A M.J., Fraudulent and Voluntary Conveyances, § 12 (Repl.Vol.1977). Because of the difficulty of establishing “actual intent”, evidence of fraud may be, and generally must be, circumstantial. Fowlkes v. Tucker, 164 Va. 507, 180 S.E. 302, 305 (1935); Hutcheson v. Savings Bank of Richmond, 129 Va. 281, 105 S.E. 677, 680 (1921); Witz, Biedler & Co. v. Osburn, 83 Va. 227, 2 S.E. 33 (1877). Consequently, without differentiating between delaying, hindering or defrauding, courts have relied historically upon presumptions of fraud, known also as “badges of fraud,” which consist of facts and circumstances which the law admits to be the signs of fraud; and from which the fraudulent intent may be inferred. See, In re Decker, 295 F.Supp. 501 (W.D.Va.1969), aff’d sub nom. Woodson v. Gilmer, 420 F.2d 378 (4th Cir.1970); Herring v. Wickham, 70 Va. (29 Gratt.) 628 (1878). The badges of fraud have been stated to include: (1) retention of an interest in the transferred property by the transferor; (2) transfer between family members for allegedly antecedent debt; (3) pursuit of the transferor or threat of litigation by his creditors at the time of the transfer; (4) lack of or gross" }, { "docid": "4513334", "title": "", "text": "The defrauded Note-holders may well be able to seek relief under other legal theories, such as restitution. See Restatement (First) of Restitution § 202. It is understandable that the bankruptcy trustee representing Sharp would seek to frame his claim in terms of the fraudulent conveyance law, since a trustee in bankruptcy is not generally empowered to pursue the claims of the debt- or’s creditors, but is specifically authorized under the bankruptcy code to pursue fraudulent conveyance claims on behalf of the debtor’s unsecured creditors. See 11 U.S.C. § 544(b). Nevertheless, the limitations on the claims available to the bankruptcy trustee do not justify expanding the proper bounds of fraudulent transfer law in this case. Actual Fraudulent Conveyance Alternatively, Sharp asserts that the $12 million payment to State Street is avoidable as an intentional fraudulent conveyance under D.C.L. § 276. The statute provides that Every conveyance made ... with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. An intentional fraudulent conveyance claim focuses on the intent of the transferor. If there was an actual intent to “hinder, delay, or defraud” creditors, the conveyance can be set aside even if the debtor remains otherwise solvent and even if fair consideration is given in exchange for the transfer. See McCombs, 30 F.3d at 328; Le Café Créme, Ltd. v. Roux (In re Le Café Créme, Ltd.), 244 B.R. 221, 239 (Bankr.S.D.N.Y.2000). Because it is based on fraudulent intent, a claim under § 276 must be plead with particularity in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. See Atlanta Shipping, 818 F.2d at 251. Recognizing that it is typically difficult to demonstrate intent by direct evidence, the courts have identified various “badges of fraud” that serve as circumstantial evidence of actual intent. The badges of fraud identified by the Second Circuit include: 1. lack or inadequacy of consideration; 2. family, friendship or close associate relationship between the parties; 3. retention of possession, benefit or use of the property in question" }, { "docid": "3863128", "title": "", "text": "Drewery changed residences fairly frequently. Simply put, the court finds that the Government did not meet its burden of proof on the element that Mr. Drewery intended to delay or defraud his creditors when he gave his house to this Plaintiff. However, even if Mr. Drewery did intend to defraud his creditors, the Government still cannot recover. The statute requires at least constructive knowledge by the taking party that the purpose of the conveyance is to delay or defraud creditors. Stokes v. McRae, 247 Ga. 658, 278 S.E.2d 393 (1981). Plaintiff testified that she did not know why her father gave her the house. This testimony is uncontradicted. Therefore, Plaintiff had no actual knowledge of Mr. Drewery’s intent to delay or defraud. There is likewise no constructive knowledge of her father’s intent by Ms. Nelson. There is insufficient evidence to show that a reasonable person would have known, or put on notice to suggest further inquiry into, Mr. Drewery’s intent to delay or defraud his creditors at the time of the transfer. It is equally reasonable to conclude from the evidence presented that the father of a daughter who has a young child would wish to provide them with a place to live if he could do so. Where circumstantial evidence is used to establish a fact, like reasonable knowledge of the grantor’s intent to defraud, it must be sufficient to establish that fact and no other. (Taken from this court’s standard jury charge in civil cases.) The circumstantial evidence now before the court fails this standard. The Government has not established that Plaintiff knew or reasonably should have known that her Father intended to delay or defraud his creditors. Therefore, the Government cannot have the conveyance of the Graham Road property set aside under O.C.G.A. § 18-2-22. The Government’s last theory of recovery is that there was an implied trust. O.C.G.A. § 53-12-26 (1982). An implied trust occurs when one party pays for property that is transferred in the name of another party. This code section does not apply to these facts. Section 53-12-26(1) will create an implied trust" }, { "docid": "3863125", "title": "", "text": "satisfied her ultimate burden of showing that the levy should be set aside. The Government has seized her home. She lives there with her only child. For the court to permit the seizure and sale to go forward would result in these two people (Plaintiff and her child) being thrown into the street. They would be rendered literally homeless. Because of the minimum wage type job worked by Ms. Nelson, she would have little chance of finding satisfactory, alternative accommodations. This case does not concern a business or corporate assets. Rather it involves the home of a mother and her son who are trying to get by. Just because her father is a criminal, there is no reason why punishment for his crimes should be inflicted on his daughter and grandson. The court is satisfied that by a preponderance of the evidence this tax levy should be overturned. The Government’s State Theories The Government also seeks to proceed on state theories of recovery for fraudulent transfer or constructive trust. The Govern ment concedes that it has the burden of proof on both of these theories. Federal Deposit Insurance Corp. v. United States, 654 F.Supp. 794, 808 (N.D.Ga.1986). The Government seeks to set the transfer from Mr. Drewery to Plaintiff aside pursuant to O.C.G.A. § 18-2-22(2). That code section provides that any conveyance made with the intent to delay or defraud creditors who are in existence or known to the grantor, where the intent to delay or defraud is known by the taking party, is void as to those creditors. The Government has failed to satisfy these elements. The Government has not proven that the transfer from Mr. Drewery to his daughter was with the intent to delay or defraud his creditors. The Government contends that the existence of the badges of fraud can be circumstantial evidence of the intent to defraud. United States v. Hickox, 356 F.2d 969 (5th Cir.1966). The Government goes on to identify that the close relationship of the parties, the lack of consideration for the conveyance, among others, as badges of fraud sufficient to prove the" }, { "docid": "21725515", "title": "", "text": "specific intent to defraud particular creditors in order for those creditors to void the contested transactions. She maintains there was no such fraudulent intent with respect to the Government in this case. The case law, however, does not support this interpretation of the Indiana statute. The cases show, as we have discussed, that fraud is a matter of fact, and that if no facts to prove fraud are submitted, fraud may not be found. No case rules that a debtor must specifically contemplate which creditors he plans to defraud by transferring assets. The cases do hold that a party who is not a creditor may not set aside a transfer of property because it is fraudulent as to a third party who is a creditor. In Personette, the Indiana Supreme Court held that any creditor injured by a fraudulent conveyance could set that transaction aside. There is no doubt in this case that the conveyance of property from George to Phyllis injured the United States. We read the words “persons sought to be defrauded” in the Indiana statute to be the equivalent of “persons intended to be defrauded,” and hold that the same badges of fraud enumerated above, that establish intent to defraud creditors, also establish intent to defraud “other persons.” Thus, even though the Government’s standing as a choate creditor may not have been fixed at the time of the transfers, the potential liability was known to the Eylers, and, if the property had not been transferred, it would have been available to satisfy George’s tax deficiency, subject to creditors’ claims holding priority over the Government claim. Intent to defraud specifically the Government was not proved, but such proof is not needed for the Government to set aside the conveyances and to hold Phyllis liable for George’s tax deficiency. It has been said that common sense and the tax law are rarely even waving acquaintances. . But the contention here is a Tweedledee-Tweedledum argument. The Government’s power to collect taxes may not be frustrated or enforced by reading the law as if it were the gospel according to Lewis" }, { "docid": "2817711", "title": "", "text": "purpose of deceiving the creditor; 4. that the creditor relied on such representations; and 5. that the creditor was damaged as a result of the misrepresentations having been made. Ophaug v. Thul (In re Ophaug), 827 F.2d 340, 342 n. 1 (8th Cir.1987). In re Kingsley, 162 B.R. 249, 253 (Bankr.W.D.Mo.1994). A finding of fraud is dependent upon the facts proven. Fraudulent intent may be inferred from the surrounding circumstances. In re Graven, 936 F.2d 378, 383 (8th Cir.1991). Fraudulent intent is presumed in cases in which a debtor has gratuitously conveyed valuable property to another. In re Schroff, 156 B.R. 250, 254 (Bankr.W.D.Mo.1993). Once a conveyance has been established by the movant, the burden then shifts to the debtor to prove that debtor’s intent was not to hinder, delay or defraud. Case law has developed factors denominated “badges of fraud” which by circumstantial evidence help determine whether a debtor possesses actual intent to defraud. In re Cohen, 142 B.R. 720, 728 (Bankr.E.D.Pa.1992). These factors include: 1. lack or inadequacy of consideration; 2. the family, friendship or close associate relationship between the parties; 3. the retention of possession, benefit or use of the property in question, although title exists in a different entity; 4. the financial condition of the parties sought to be charged both before and after the transaction in question; 5. conveyance of all the debtor’s property; 6. secrecy of the conveyance; 7. existence of a trust or trust relationship between the debtor and the person to whom the property was conveyed; 8. the existence or cumulative affect of a pattern or series of transaction or a course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suit by creditors; 9. the instrument effecting the transfer suspiciously states it is in fact bona fide; 10. debtor makes a voluntary gift to a family member; 11. the general chronology of events and transactions under inquiry. Cohen, 142 B.R. at 728. ANALYSIS The U.S. Trustee has raised numerous claims of misconduct by Debtors which constitute grounds for conversion to a Chapter 7 or" }, { "docid": "21724454", "title": "", "text": "637. This rule has no applicability where, as here, it is undisputed that State Street’s loan was made in good faith long before the purportedly fraudulent' transfer. No ground exists therefore to “collapse” that loan into other (non-contemporaneous) bad-faith maneuvers. Sharp has alleged State Street’s knowledge that the funds used to repay the preexisting debt were fraudulently obtained. New York fraudulent conveyance law, however, is primarily concerned with transactions that shield company assets from creditors, not the manner in which specific debts were created, see Boston Trading, 835 F.2d at 1510; State Street’s knowledge of the Spitzes’ fraud, without more, does not allow an inference that State Street received the $12.25 million payment in bad faith. Cf. Ede, 193 A.D.2d at 942, 598 N.Y.S.2d 90 (holding that fair consideration was lacking in the face of evidence “which can admit of no finding other than ... bad faith”). C. Intentional Fraudulent Conveyance Sharp alleges that Sharp’s $12.25 million payment to State Street is voidable as an intentional fraudulent conveyance. Pursuant to DCL § 276: Every conveyance made ... with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. “[T]o prove actual fraud under § 276, a creditor must show intent to defraud on the part of the transferor.” HBE Leasing II, 61 F.3d at 1059 n. 5. “[W]here actual intent to defraud creditors is proven, the conveyance will be set aside regardless of the adequacy of consideration given.” McCombs, 30 F.3d at 328. As “actual intent to hinder, delay, or defraud” constitutes fraud, Atlanta Shipping, 818 F.2d at 251, it must be pled with specificity, as required by Fed.R.Civ.P. 9(b). Moreover, “[t]he burden of proving ‘actual intent’ is on the party seeking to set aside the conveyance.” McCombs, 30 F.3d at 328. “Due to the difficulty of proving actual intent to hinder, delay, or defraud creditors, the pleader is allowed to rely on ‘badges of fraud’ to support his case, i.e., circumstances so commonly associated with fraudulent transfers that their presence gives" }, { "docid": "3863127", "title": "", "text": "existence of Mr. Drewery’s intent to defraud creditors. The court wonders why a person who is trying to delay or defraud his creditors would put “For love and affection” as the consideration for the transfer of the property? It does not seem logical. Surely a person who sought to defraud his creditors would invent some sort of valuable consideration, at least to show on the recorded instrument. That is not the case here. Similarly, Georgia law appears to require close scrutiny of a transaction when the parties are married to each other or closely related. See State Banking Co. v. Miller, 185 Ga. 653, 655, 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755, 35 S.E.2d 288 (1945). However, this transaction survives close investigation. The parties did not attempt to hide the gift of the house. Mr. Drewery does stay there, but not regularly. Given Mr. Drewery’s rather itinerant nature, it does not appear strange that he has items stored at this house or possibly others. From the testimony, it appears that Mr. Drewery changed residences fairly frequently. Simply put, the court finds that the Government did not meet its burden of proof on the element that Mr. Drewery intended to delay or defraud his creditors when he gave his house to this Plaintiff. However, even if Mr. Drewery did intend to defraud his creditors, the Government still cannot recover. The statute requires at least constructive knowledge by the taking party that the purpose of the conveyance is to delay or defraud creditors. Stokes v. McRae, 247 Ga. 658, 278 S.E.2d 393 (1981). Plaintiff testified that she did not know why her father gave her the house. This testimony is uncontradicted. Therefore, Plaintiff had no actual knowledge of Mr. Drewery’s intent to delay or defraud. There is likewise no constructive knowledge of her father’s intent by Ms. Nelson. There is insufficient evidence to show that a reasonable person would have known, or put on notice to suggest further inquiry into, Mr. Drewery’s intent to delay or defraud his creditors at the time of the transfer. It is equally" }, { "docid": "3863126", "title": "", "text": "has the burden of proof on both of these theories. Federal Deposit Insurance Corp. v. United States, 654 F.Supp. 794, 808 (N.D.Ga.1986). The Government seeks to set the transfer from Mr. Drewery to Plaintiff aside pursuant to O.C.G.A. § 18-2-22(2). That code section provides that any conveyance made with the intent to delay or defraud creditors who are in existence or known to the grantor, where the intent to delay or defraud is known by the taking party, is void as to those creditors. The Government has failed to satisfy these elements. The Government has not proven that the transfer from Mr. Drewery to his daughter was with the intent to delay or defraud his creditors. The Government contends that the existence of the badges of fraud can be circumstantial evidence of the intent to defraud. United States v. Hickox, 356 F.2d 969 (5th Cir.1966). The Government goes on to identify that the close relationship of the parties, the lack of consideration for the conveyance, among others, as badges of fraud sufficient to prove the existence of Mr. Drewery’s intent to defraud creditors. The court wonders why a person who is trying to delay or defraud his creditors would put “For love and affection” as the consideration for the transfer of the property? It does not seem logical. Surely a person who sought to defraud his creditors would invent some sort of valuable consideration, at least to show on the recorded instrument. That is not the case here. Similarly, Georgia law appears to require close scrutiny of a transaction when the parties are married to each other or closely related. See State Banking Co. v. Miller, 185 Ga. 653, 655, 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755, 35 S.E.2d 288 (1945). However, this transaction survives close investigation. The parties did not attempt to hide the gift of the house. Mr. Drewery does stay there, but not regularly. Given Mr. Drewery’s rather itinerant nature, it does not appear strange that he has items stored at this house or possibly others. From the testimony, it appears that Mr." }, { "docid": "21724455", "title": "", "text": "made ... with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. “[T]o prove actual fraud under § 276, a creditor must show intent to defraud on the part of the transferor.” HBE Leasing II, 61 F.3d at 1059 n. 5. “[W]here actual intent to defraud creditors is proven, the conveyance will be set aside regardless of the adequacy of consideration given.” McCombs, 30 F.3d at 328. As “actual intent to hinder, delay, or defraud” constitutes fraud, Atlanta Shipping, 818 F.2d at 251, it must be pled with specificity, as required by Fed.R.Civ.P. 9(b). Moreover, “[t]he burden of proving ‘actual intent’ is on the party seeking to set aside the conveyance.” McCombs, 30 F.3d at 328. “Due to the difficulty of proving actual intent to hinder, delay, or defraud creditors, the pleader is allowed to rely on ‘badges of fraud’ to support his case, i.e., circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent.” Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 529, 684 N.Y.S.2d 244, 247 (1st Dep’t 1999) (internal citations and quotation marks omitted). These “badges of fraud” may include (inter alia): “a close relationship between the parties to the alleged fraudulent transaction; a questionable transfer not in the usual course of business; inadequacy of the consideration; ... and retention of control of the property by the transferor after the conveyance.” Id.; see also HBE Leasing I, 48 F.3d at 639 (“Actual fraudulent intent ... may be inferred from the circumstances surrounding the transaction, including the relationship among the parties and the secrecy, haste, or unusualness of the transaction.”); In re Kaiser, 722 F.2d 1574, 1582-83 (2d Cir.1983). Sharp argues that the district court inappropriately focused on “badges of fraud” even though the Spitzes’ fraud was so clearly established that it need not be detected by indicia. However, the intentional fraudulent conveyance claims fails for the independent reason that Sharp inadequately alleges fraud with respect to the transaction that Sharp seeks" }, { "docid": "21725514", "title": "", "text": "of all property subject to execution; (3) retention by the debtor of a beneficial interest in the property; (4) transfer of property for no or inadequate consideration; and (5) a transfer of property between members of a family. The facts of this case as stipulated and found by the Tax Court illustrate each of these badges of fraud. (1) George Eyler conveyed property to a family member (his wife, Phyllis). (2) She gave inadequate consideration for the property. (3) George retained a beneficial interest in the property, because he maintained a right to determine how to dispose of the proceeds of the property. (4) The transfer from George to Phyllis stripped George of assets subject to execution. (5) Finally, the transfer greatly reduced George’s assets, if it did not render him insolvent. Given these facts, which are circumstantial evidence of fraud, we can find no clear error in the Tax Court’s finding that the intent behind the conveyances was fraudulent. Phyllis Eyler contends that Indiana law is unusual in that it requires a finding of specific intent to defraud particular creditors in order for those creditors to void the contested transactions. She maintains there was no such fraudulent intent with respect to the Government in this case. The case law, however, does not support this interpretation of the Indiana statute. The cases show, as we have discussed, that fraud is a matter of fact, and that if no facts to prove fraud are submitted, fraud may not be found. No case rules that a debtor must specifically contemplate which creditors he plans to defraud by transferring assets. The cases do hold that a party who is not a creditor may not set aside a transfer of property because it is fraudulent as to a third party who is a creditor. In Personette, the Indiana Supreme Court held that any creditor injured by a fraudulent conveyance could set that transaction aside. There is no doubt in this case that the conveyance of property from George to Phyllis injured the United States. We read the words “persons sought to be defrauded” in" }, { "docid": "9841131", "title": "", "text": "point. Ost-Westr-Handel, 160 F.3d at 176. , The Court has already applied Virginia law to this case with respect to fraudulent transfer when it determined that under Virginia law, no statute of limitation applies to fraudulent transfers under Va. Code § 55.80, but laches instead is the test. Op. & Order at 11, ECF No. 249. Unlike the substantial precedent examining alter ego in admiralty, there is no admiralty rule on point for fraudulent transfer, the Court therefore applies Virginia law to the question of fraudulent transfer. The Virginia Code provides that: Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, every suit commenced or decree, judgment or execution suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. Va.Code § 55-80. • The statute requires the transfer be made with the intent to hinder or delay. 9A Miohie’s Jurisprudence § 12 at 17 (2010). The intent to defraud one creditor renders the transfer void as to all creditors. Id. at 17-18. Both the grantor and grantee must have the same fraudulent purpose. Id. § 14 at 19. Intent is inferred from the circumstances surrounding a transfer; these circumstances are known as “badges of fraud.” These badges include: the relationship of the parties, the grantor’s insolvency, pursuit of the grantor by creditors at the time of the transfer, want of consideration, retention of the property by the grantor, and fraudulent incurrence of indebtedness after the conveyance, gross inadequacy of price, no security taken for the purchase money, unusual length of credit, and bonds taken at long period. Id. § 15 at 22. Once a prima facie" }, { "docid": "13182400", "title": "", "text": "here only to transfers made within one year of the Petition Date. Pursuant to DCL section 276, “[e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.” N.Y. Debt. & Cred. Law § 276. In contrast to DCL sections 273 and 274, which permit the finding of constructive fraud based on the lack of fair consideration, “section 276 focuses on the ‘actual intent’ of the transacting parties.” United States v. McCombs, 30 F.3d 310, 327 (2d Cir.1994). Proof of intent to defraud is not required; rather, proof of intent to hinder or delay creditors will suffice. Nisselson v. Empyrean Inv. Fund, L.P. (In re MarketXT Holdings Corp.), 376 B.R. 390, 403 (Bankr.S.D.N.Y.2007) (citations omitted). “Since the question of actual fraud involves the parties’ state of mind, it is not ordinarily proven by direct evidence, but rather, by inference from other facts proven.” McCarthy v. Nandalall (In re Nandalall), 434 B.R. 258, 266 (Bankr.N.D.N.Y.2010) (quoting Adams v. Zembko (In re Zembko), 367 B.R. 253, 256 (Bankr.D.Conn.2007)). “Due to the difficulty of proving actual intent to hinder, delay, or defraud creditors, the pleader is allowed to rely on ‘badges of fraud’ to support his case, i.e., circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent.” Sharp Int’l Corp. v. State St. Bank & Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 56 (2d Cir.2005) (internal quotation marks and citations omitted). Circumstances recognized by the Second Circuit as “badges of fraud” include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial" }, { "docid": "21273916", "title": "", "text": "“Under § 727(a)(2)(A), an objection to discharge will be sustained if the objecting party alleges and proves the following elements: (1) the debtor transferred, removed, destroyed, mutilated or concealed property; (2) belonging to the estate; (3) within one year of filing the petition; and (4) with the intent to hinder, delay or defraud a creditor of the estate.” The elements of § 727(a)(2)(B) are “substantially the same except that the plaintiff must prove that the debtor transferred or concealed property of the estate after the bankruptcy petition was filed.” As the statutory language makes clear, denial of discharge “need not rest on a finding of intent to defraud. Intent to hinder or delay is sufficient.” “Case law treats ‘intent to hinder or delay’ as an intent to improperly make it more difficult for creditors to reasonably collect on their debts.” A denial of discharge under either subsection of § 727(a)(2) requires proof of actual intent to hinder, delay or defraud a creditor; however, such intent may be proven by circumstantial evidence or by inferences drawn from a debtor’s course of conduct. “A single wrongful act or omission may be sufficient to prove actual intent, however, evidence of a pattern of wrongful behavior presents a stronger case.” “In determining whether a debtor has acted with intent to defraud under § 727, the court should consider the debtor’s ‘whole pattern of conduct.’ ” As such, the fundamental inquiry is really a totality of the circumstances test that necessitates an examination of all the facts and circumstances; however, courts have generally acknowledged particular factors or “badges of fraud” that serve as indicia of the improper intent required by § 727(a)(2). Although the Tenth Circuit has not set forth any specific list of “badges of fraud,” these badges normally include the following: “(1) lack or inadequacy of consideration for transfer; (2) existence of a family, friendship, or special relationship between parties; (3) attempt by debtor to keep transfer secret; (4) financial condition of the party sought to be charged both before and after transaction; (5) existence or cumulative effect of pattern or series of" }, { "docid": "9841142", "title": "", "text": "ICI fraudulently transferred the charter of the HARMONY FALCON and assets to Vista. The Virginia Code provides that: Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, every suit commenced or decree, judgment or execution suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. Va.Code § 55-80. The statute requires the transfer be made with the intent to hinder or delay. 9A Miohie’s JurisprudenCe § 12 at 17 (2010). Both the grantor and grantee must have the same fraudulent purpose. Id. § 14 at 19. Intent is inferred from the circumstances surrounding a transfer; these circumstances are known as “badges of fraud.” These badges include: the relationship of the parties, the grantor’s insolvency, pursuit of the grantor by creditors at the time of the transfer, want of consideration, retention of the property by the grantor, fraudulent incurrence of indebtedness after the conveyance, gross inadequacy of price, no security taken for the purchase money, unusual length of credit, and bonds taken at long period, Id. § 15 at 22, all of which exist in this case. • As concluded above, ICI, Vista, Viktor Baranskiy, and FBP are alter egos. ICI was insolvent at the time it gave the charter of the HARMONY FALCON to Viktor Baranskiy’s Vista and made money transfers to Viktor Baranskiy’s Vista. Viktor Baranskiy and Vista gave no consideration for the charter of the HARMONY FALCON nor the initial funds of Vista, which were not commissions for Viktor Baranskiy’s work. After providing the HARMONY FALCON charter and its assets to Vista, ICI officially filed for bankruptcy in Greece. Vista paid nothing for the" }, { "docid": "12284569", "title": "", "text": "Minn.Stat. §§ 513.20-.32 (These sections were repealed in 1986 and replaced in part with Minn.Stat. § 513.44.) Minnesota Uniform Fraudulent Conveyance Act provided several alternative theories under which a creditor may set aside a fraudulent conveyance. The government argues that it did not seek to prove that the transfers were fraudulent conveyances under the section that required proof of insolvency, Minn.Stat. § 513.23; rather, the government (and the district court) relied on two sections, § 513.25 (conveyance by a person about to incur debt), and § 513.26 (conveyance made with intent to defraud), in which insolvency was just one factor to be considered in determining whether a transfer was made with actual intent to defraud. As the district court properly noted, actual intent for the purpose of § 513.26 may not be presumed. See slip op. at 13. One may establish actual intent through the examination of circumstantial evidence or “badges of fraud.” Citizens State Bank v. Leth, 450 N.W.2d 923, 927 (Minn.Ct.App.1990) (Leth) (applying Minn.Stat. § 513.44). Under Minnesota law, although the creditor bears the initial burden of proving fraud, if a creditor demonstrates sufficient badges of fraud, the burden of production shifts to the party contending that a fraudulent conveyance has not occurred. See Argonaut Insurance Co. v. Cooper, 395 N.W.2d 119, 121-22 (Minn.Ct.App.1986) (Argonaut) (applying Minn.Stat. § 513.26); accord Xemas, 689 F.Supp. at 922 (applying Minn.Stat. §§ 513.23, 26). The badges of fraud which courts are to consider when determining actual intent include, but are not limited to: “adequacy of consideration, confidential relationship between grantor and grantee, ... retention of possession of the property by the debtor, failure to testify or produce available explanatory or rebutting evidence when circumstances attending to transfer are suspicious,” Argonaut, 395 N.W.2d at 122, failure to record the transfer or conveyance documents, prospective debts or threats of suit, and the insolvency of the debtor either before or as a result of the transaction. See Leth, 450 N.W.2d at 927. Minn.Stat. § 513.44(b) lists as factors to be considered whether before the transfer was made or obligation was incurred, the debt- or had" } ]

[ { "docid": "22338155", "title": "", "text": "individual defendants is a telephone call from an AAFES office in Dallas, Texas to OMSC’s office in New York. The individual federal defendants, however, are not employees of AAFES. There was no evidence that any of the individual federal defendants placed the call or caused the call to be placed. Further, there is no evidence that any of the individual defendants participated in the call. This isolated phone call is an insufficient basis for personal jurisdiction over the individual defendants. See Fiedler v. First City Nat'l Bank of Houston, 807 F.2d 315, 317-18 (2d Cir.1986) (two telephone calls and one mailing from Texas to New York were insufficient to sustain jurisdiction over non-domiciliary under N.Y.Civ.Prac.L. & R. § 302(a)). E. Robinson’s Other Claims The district court dismissed Robinson’s claims under 18 U.S.C. §§ 242 and 1385. Both of these are criminal statutes that do not provide private causes of action. See Powers v. Karen, 768 F.Supp. 46, 51 (E.D.N.Y.1991), aff'd 963 F.2d 1522 (2d Cir.1992); Lamont v. Haig, 539 F.Supp. 552, 558-59 (D.S.D.1982). Accordingly, the district court properly dismissed these claims. III. Conclusion We affirm the district court’s order granting summary judgment for OMSC and dismiss Robinson’s claims against AAFES and the individual defendants. Robinson failed to raise a genuine issue of material fact as to whether OMSC’s justification for discharging Robinson was pretextual. Robinson’s claims against AAFES and the individual federal defendants in their official capacities fail for lack of subject matter jurisdiction. Robinson also failed to make a prima facie showing of personal jurisdiction over the individual federal defendants. Judgment affirmed. . Following these events, Robinson filed a timely claim with the EEOC. He received his right to sue letter on November 10, 1992. . 18 U.S.C. § 242 provides for a fine of up to $1,000 and imprisonment for subjecting any inhabitant of the United States to the deprivation of any \"rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 1385 provides for a fine of not more than $10,000 and up to two years of imprisonment" } ]

[ { "docid": "22295069", "title": "", "text": "1871. Any “confusion surrounding these cases derives partly from the factual contexts of the cases (most fall within traditional ‘inadequate’ or ‘futile’ exceptions) and partly from the puzzling brevity of the courts’ explanations for such a no-exhaustion rule.” Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565, 570 (1975). Yet careful examination of the concerns of Congress and the decisions of the Supreme Court should remove any confusion and solve any puzzle surrounding the Court’s declaration of a no-exhaustion rule in all 1983 actions. I. SECTION 1983 AND THE COURT A. The Early History of Restrictive Judicial Interpretation Section 1983 was enacted as part of the Civil Rights Act of 1871 (the “Ku Klux Klan Act”). The section provides a private, federal remedy for persons deprived of federal rights under color of state law: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [42 U.S.C. § 1983.] Though this language is broad and inclusive, section 1983 initially proved ineffective as a shield against state violation of federal rights. Restrictive judicial interpretation permitted a section 1983 action only to vindicate section 1983 offenses actually committed by the states. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). In the 1940’s, the Supreme Court began to allow full implementation of the Civil Rights Act by recognizing the broad reach of the words “under color of state law.” 42 U.S.C. § 1983. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Hague v. CIO, 307 U.S. 496, 59" }, { "docid": "6518193", "title": "", "text": "alien, or by reason of his color, or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court. Id. at 827-28 (citing 16 Stat. 144 (1870)) (emphasis added). .[S]ection 1 ... That any person who under color of any law ... of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall ... be liable to the party injured, in any action at law, suit in equity, or other proper proceeding for redress.... Id. at 828 (citing 17 Stat. 13 (1871)) (emphasis added). The Ku Klux Act provided for both civil and criminal liability. Section 1, however, was purely civil, and provided an action for individuals to get either damages or injunctions against those who deprived them of their civil rights. The criminal provision of the 1871 Act is Section 2, which is the predecessor of current § 241. The compiler mistakenly used language from the civil section of the 1871 Act and created a statute like the civil statute, tied simply to \"constitutional rights” and not limited to any specific conduct. . Another portion of the Ku Klux Act of 1871 provided for criminal penalties for conspiracies to violate constitutional rights, and became the basis for the modem day 18 U.S.C. § 241. This act was directed primarily at the Ku Klux Klan, and did not include the requirement that the violation occur under color of law. It criminalizes a conspiracy in which \"two or more persons go in disguise upon the [public] highway” to hinder the exercise of a constitutional right. 18 U.S.C. § 241 (1988). . This is a serious mistake. The section quoted from the 1871 Act was civil only, and it was the broad language of the civil statute that was adopted as § 242. . The following" }, { "docid": "22650733", "title": "", "text": "and for other Purposes.” The 1871 Act, popularly known as the “Ku Klux Klan Act,” was, as its legislative history makes absolutely clear, a response to the outrages committed by the Klan in many parts of the South. The conditions that gave rise to the Act were discussed extensively in Monroe v. Pape, 365 U. S. 167, 172-183 (1961). In the context of that case we pointed out that although the 1871 Act was engendered by the activities of the Klan, the language and purposes of § 1983 are not restricted to that evil. See 365 U. S., at 183. See also United States v. Mosley, 238 U. S. 383, 388 (1915), where Mr. Justice Holmes, speaking for the Court, commented on § 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U. S. C. § 241, in words applicable to § 1983: “Just as the Fourteenth Amendment . . . was adopted with a view to the protection of the colored race but has been found to be equally important in its application to the rights of all, [the statute] had a general scope and used general words that have become the most important now that the Ku Klux have passed away. . . . [W]e cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which on its face [the statute] most reasonably affords.” Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remedies — civil, criminal, and military - — for the protection of constitutional rights from all major interference. In the 1871 Act, Congress undertook to provide broad federal civil remedies against interference with the exercise and actual enjoyment of constitutional rights, particularly the right to equal protection. Section 1 (now § 1983) provided a civil remedy for deprivation of any constitutional right by a person acting “under color of any law, statute, ordinance, regulation, custom, or usage of any State ." }, { "docid": "22206865", "title": "", "text": "Katzenbach v. Original Knights of the Ku Klux Klan, E.D.La, 250 F.Supp. 330 (1965), and cases discussed therein. . 42 U.S.C. § 1983 (1964 ed.) establishes a right of action for the deprivation of any “rights, privileges, or immunities secured by the Constitution and laws” only against persons acting under color of law. And only under color of the law of a state or territory. Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581 (1949), cert, denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). 42 U.S.C. § 1985(3) (1964 ed.), which establishes a right of action against inter ference or intimidation by private individuals, requires a conspiracy by two or more persons. . See note 36 on page 699. 36. 18 U.S.C. § 241 which provides criminal penalties for interference with rights or privileges secured by the Constitution or laws of the United States requires a conspiracy, while 18 U.S.C. § 242 (1964 ed.) penalizes only those acting under color of law. (Section 242 is not, however, limited to those acting under the law of a state or territory.) . See note 37 on page 699. 37. As with Shelley, there are, conceivably, problems in containing the Quarles doctrine. Could, for instance, a landlord invite all his tenants to dinner except those who had complained of housing code violations? Again the landlord’s countervailing constitutional rights of privacy and association may be the cutting edge. Or perhaps such petty slights do not rise to the level of intimidation, coercion, interference or punishment. Finally, as Judge Greene pointed out, appellant is simply setting up her constitutional right as a defense, and is not seeking affirmative relief based on it. . In L’Orange v. Medical Protective Co., 6 Cir., 394 F.2d 57 (1968), the Sixth Circuit held that a malpractice insurer could not cancel the policy of an Ohio dentist simply because the insured testified in a malpractice suit against a colleague insured by the same company. Presumably the policy could have been cancelled for any lawful reason or for no reason at all, but it could not be can-celled" }, { "docid": "6117318", "title": "", "text": "to a large extent by appellees, ultimately resulted in the Board’s reversing its prior decision and suspending Dorsey pending the outcome of his trial for kidnap and battery. Title 42 U.S.C. § 1983 was originally enacted as Section 1 of the Anti-Ku Klux Klan Act of 1871, 17 Stat. 13 (1871), The act was aimed primarily at vindicating constitutional rights which were being abused in the post-bellum South. See generally, Virginia Commission on Constitutional Government, The Reconstruction Amendments’ Debates (1967), pp. 484-570. Soon after its enactment, Congress revised the so-called civil rights statutes so as to protect all federal rights —be they constitutional or statutory. See Screws v. United States, 325 U.S. 91, 99, 65 S.Ct. 1031, 1034, 89 L.Ed. 1495 (1945) ; Hague v. Committee for Industrial Organization, 307 U.S. 496, 510, 59 S.Ct. 954, 961, 83 L.Ed. 1423 (1939). This statute is now codified in 42 U.S.C. § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The motion to dismiss raises a simply phrased question: Has Dorsey been deprived of a “right” secured by the “Constitution and laws” ? The Third Circuit has answered an apparently similar question in the negative: “It is perfectly plain that the plaintiff’s right, if any he has, to be reinstated as a township policeman is derived solely from the law of Pennsylvania. This is not a right secured by the Constitution and laws of the United States within the meaning of Section [1983] of the [U.S.Code].” Charters v. Shaffer, 3 Cir., 1950, 181 F.2d 764, 765. Whatever “rights” Dorsey may have to be reinstated as a New Iberia policeman derives solely, under the facts alleged in this record, from the law of Louisiana. Their deprivation, therefore," }, { "docid": "6518194", "title": "", "text": "their civil rights. The criminal provision of the 1871 Act is Section 2, which is the predecessor of current § 241. The compiler mistakenly used language from the civil section of the 1871 Act and created a statute like the civil statute, tied simply to \"constitutional rights” and not limited to any specific conduct. . Another portion of the Ku Klux Act of 1871 provided for criminal penalties for conspiracies to violate constitutional rights, and became the basis for the modem day 18 U.S.C. § 241. This act was directed primarily at the Ku Klux Klan, and did not include the requirement that the violation occur under color of law. It criminalizes a conspiracy in which \"two or more persons go in disguise upon the [public] highway” to hinder the exercise of a constitutional right. 18 U.S.C. § 241 (1988). . This is a serious mistake. The section quoted from the 1871 Act was civil only, and it was the broad language of the civil statute that was adopted as § 242. . The following passages are excerpts of Congressman Poland’s statements to the House assuring other representatives that the recodification would not change the law. Mr. Wood: If the gentleman from Vermont would permit me, I would like to ask him a question. It is, whether there will he anything in this revision of the laws that we have not already in the Statutes at Large? Mr. Poland: Nothing; At least we do not intend there shall be. 2 Cong.Ree. 129 (1873). Later, Mr. Poland again made it clear that no substantive changes were intended: Mr. Poland: As I have already said, the commissioners have made some changes in the law, as they were authorized to do under the law. Mr. Durant [the compiler] was employed by the sub-committee of the House ... to go over this work and strike out everything in the nature of a change of the law. We purpose to present the law, when we have gone over it, as a reflex of existing statutes in force on the first day of this session [Dec." }, { "docid": "15162152", "title": "", "text": "Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 732-36 (1968). The United States, acting as respondent in this proceeding pursuant to Fifth Circuit Local Rule 22, contends that it satisfies the requirements of Rule 24(b)(2), and thus that the trial court acted within the sphere of its discretionary power in permitting it to intervene, on three grounds: 1) that it falls within the express language of the Rule, 2) that it has inherent authority to participate in litigation involving its interests (e. g., In Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 [1895]), and 3) that 28 U.S.C. § 517 provides a general statutory authorization for such participation. Because I agree with the United States on the first ground, I would find it unnecessary to reach the other two grounds. The original complaint in this case, as well as the amended complaint and the complaint of the United States in intervention, were all grounded on 42 U.S.C. § 1983, which provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territo ry, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” § 1983 thus provides for private relief in civil actions from the deprivation of rights secured by the Constitution and its laws. The protection from deprivation of civil rights is not confined solely to civil redress, however; §§ 241 and 242 of Title 18 of U.S.C. provide for criminal penalties for the deprivation of such rights. The criminal statutes provide: § 241. Conspiracy against rights of citizens. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the" }, { "docid": "8110859", "title": "", "text": "Batts required that Poventud prove a favorable termination of any charge arising from the criminal transaction that occurred with the shooting and robbery, consistent with the requirements of malicious prosecution claims. Id. (citing, inter alia, Smith-Hunter v. Harvey, 95 N.Y.2d 191, 196-97, 712 N.Y.S.2d 438, 734 N.E.2d 750 (2002)). Because a plea to a lesser-included charge does not meet that requirement, Judge Batts held that Heck barred Poventud’s claim. Id. Poventud appealed to a panel of this Court in 2012. In April 2013, a divided panel held that Heck did not apply to Poventud’s lawsuit because he had been released from prison and therefore no longer had access to habeas corpus remedies. Poventud, 715 F.3d at 60. We ordered this rehearing en banc, vacated the panel’s opinion, and, for the reasons stated below, find that Heck does not bar Poventud’s § 1983 suit because his claim does not necessarily imply the invalidity of his outstanding conviction. Governing Law I. 42 U.S.C. § 1983, Heck, and the Invalidity of Outstanding Convictions In passing the Ku Klux Klan Act of 1871, 17 Stat. 13, Congress created a cause of action that gave “a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.” Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled on other grounds by Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this ‘force bill,’ ” Monroe, 365 U.S. at 174-75, 81 S.Ct. 473 (citation omitted), which is now codified at 42 U.S.C. § 1983. This statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by" }, { "docid": "5183034", "title": "", "text": "(Count II) will proceed. B. Plaintiffs Claim for Civil Rights Violations Plaintiff alleges that defendants caused him to be subjected to a deprivation of rights, privileges, and immunities secured by: (1) 42 U.S.C. § 1983; (2) 18 U.S.C. §§ 241, 242, and 245; and (3) D.C.Code § 4-176. Plaintiffs claims under 18 U.S.C. §§ 241, 242, and 245 and pursuant to D.C.Code § 4-176 will be summarily dismissed, however, as there is no private right of action under these criminal statutes. As such, this opinion addresses only plaintiffs claim under 42 U.S.C. § 1983. 1. Plaintiffs Section 1983 Claim, Plaintiff alleges that WCSA is directly and vicariously liable under 42 U.S.C. § 1983 for violations of his constitutional rights under the Fourth and Eighth Amendments of the U.S. Constitution. Plaintiff appears to proceed on a theory of municipality liability on the basis that WCSA is “established as an independent authority of the District government.” Am. Compl. ¶ 6. According to plaintiff, WCSA is directly liable for Officer Singh’s alleged misconduct because he was acting “pursuant to [WCSA’s] employment policies and procedures,” and WCSA is vicariously liable for “the actions of Defendant Officer Singh under the doctrine of respondeat superior.” Am. Compl. ¶¶ 34, 37. Under section 1983, however, a plaintiff may not recover under a theory of vicarious liability. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory”). As such, the Court addresses only whether plaintiff has pled sufficient facts to state a claim against WCSA for direct liability. Section 1983 provides that “[any] person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. ...” 42 U.S.C. § 1983. To state a claim for municipality" }, { "docid": "6117317", "title": "", "text": "AINSWORTH, Circuit Judge: This appeal raises the question whether tenure rights as a city police officer, which are protected by the Louisiana Constitution in Article 14, can be vindicated in an action under 42 U.S.C. § 1983. Accepting the “well-pleaded facts as the hypothesis for decision,” Collins v. Hardyman, 341 U.S. 651, 652, 71 S.Ct. 937, 938, 95 L.Ed. 1253 (1951), the case can be stated briefly as follows: Appellant Dorsey was a member of the New Iberia, Louisiana, police force for twelve years until his dismissal by the police chief on April 25, 1967. The dismissal was precipitated by an incident in which Dorsey allegedly violated police regulations and allegedly committed simple kidnap and simple battery upon Mrs. Rosemary V. Harris, a citizen of New Iberia. Dorsey appealed his dismissal to the New Iberia Fire and Police Civil Service Board, pursuant to constitutional procedures. La.Const. art. 14, § 15.1 [31]. The Board thereupon reinstated Dorsey without considering evidence of the indictments pending against him. A public outcry, alleged to have been conceived and fostered to a large extent by appellees, ultimately resulted in the Board’s reversing its prior decision and suspending Dorsey pending the outcome of his trial for kidnap and battery. Title 42 U.S.C. § 1983 was originally enacted as Section 1 of the Anti-Ku Klux Klan Act of 1871, 17 Stat. 13 (1871), The act was aimed primarily at vindicating constitutional rights which were being abused in the post-bellum South. See generally, Virginia Commission on Constitutional Government, The Reconstruction Amendments’ Debates (1967), pp. 484-570. Soon after its enactment, Congress revised the so-called civil rights statutes so as to protect all federal rights —be they constitutional or statutory. See Screws v. United States, 325 U.S. 91, 99, 65 S.Ct. 1031, 1034, 89 L.Ed. 1495 (1945) ; Hague v. Committee for Industrial Organization, 307 U.S. 496, 510, 59 S.Ct. 954, 961, 83 L.Ed. 1423 (1939). This statute is now codified in 42 U.S.C. § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected," }, { "docid": "2774603", "title": "", "text": "court supervision of “death squad” activities. Defendants moved for summary judgment arguing that Crumpton, who was a fetus at the time his father was killed, was not a “person” as contemplated by 42 U.S.C. section 1983. Relying on Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the district court granted the motion for summary judgment on the ground that “a fetus is not a person under 42 U.S.C. section 1983 on whose behalf an action can be brought.” DISCUSSION This case poses a novel, purely legal question. Indeed, our research has uncovered no federal case on all fours. Specifically, we must decide whether a child may bring a section 1983 action based upon the unconstitutional killing of his father prior to the child’s birth. 42 U.S.C. section 1983, derived from section 1 of the Civil Rights Act of 1871 (also referred to as the Ku Klux Klan Act of 1871), provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress. Congress enacted section 1983 pursuant to its power under section 5 of the Fourteenth Amendment to adopt “appropriate legislation” to enforce the Fourteenth Amendment. Quern v. Jordan, 440 U.S. 332, 351 n. 3, 355, 99 S.Ct. 1139, 1150 n. 3, 1152, 59 L.Ed.2d 358 (1979) (Brennan, J., concurring). See also Ngiraingas v. Sanchez, 495 U.S. 182, 110 S.Ct. 1737, 1740, 109 L.Ed.2d 163 (1990). Traditionally, the requirements for relief under section 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a “person” (4) acting under color of state law. See, e.g., Parratt v. Taylor, 451 U.S. 527," }, { "docid": "2461898", "title": "", "text": "F.2d 126, 128 (7th Cir.1982). Because Shields has no evidence of an unconstitutional policy or custom of Wex-ford itself, these precedents doom his claim against the corporation. For reasons we explain below, however, Iskander and our cases following it on this point deserve fresh consideration, though it would take a decision by this court sitting en banc or pursuant to Circuit Rule 40(e), or a decision by the Supreme Court to overrule those decisions. We start with the background of § 1983 and the Supreme Court cases relevant to the issue, then turn to circuit court decisions, and finally discuss reasons to question those circuit decisions and adopt a different approach for private corporations. The law now codified as 42 U.S.C. § 1983 was enacted as part of the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, to provide a private right of action against persons acting under col- or of state law who violated constitutional rights. See 17 Stat. 13, § 1. The statute provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... ” The 42nd Congress enacted the law as part of a series of steps to protect freed slaves and their supporters from abuses of local and state government power in the Reconstruction era. The statute was not used often until the Supreme Court held in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that § 1983 could provide a federal remedy for constitutional violations even if the defendant’s action also violated state law and even if a state remedy was available. After Monroe, § 1983 became the most important vehicle for enforcing" }, { "docid": "2435845", "title": "", "text": "to establish a prima facie case of retaliation under § 1983. (Docket No. 46 at 16-17). Title 42, United States Code, section 1983 does not create substantive rights, but rather provides a remedy for a violation of rights created by federal law or the Constitution of the United States. 42 U.S.C. § 1983; City of Okl. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). In order to establish a prima facie case under § 1983, a plaintiff is required to demonstrate that: (1) a “person” deprived him or her of a federal right; and (2) the person who deprived him or her of said right acted under color of state or territorial law. Connecticut v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). 42 U.S.C. § 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... Plaintiff claims Defendants retaliated against her in violation of § 1983 for exercising her rights under the First Amendment. (Docket No. 17 at ¶¶ 26-31). The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech .... ” U.S. Const. Amend. I. The Amendment applies to the states, their political subdivisions, and agents thereof through the Fourteenth Amendment. See Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The First Amendment is implicated when a public employee is subjected to an adverse employment action in retaliation for his or her speech. Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987). In determining whether a plaintiff has established a prima facie case of First Amendment retaliation, under" }, { "docid": "19775788", "title": "", "text": "disclosure was required under statute or regulation adopted pri- or to such date to verify the identity of an individual. Privacy Act of 1974, Pub.L. No. 93-579, § 7, 88 stat. 1896,1909 (1974), reprinted in 5 U.S.C. 55a (2003) In this case, none of the Defendants qualify as federal, state or local government agencies. Moreover, even if Defendants were considered government actors, they are required by federal law to obtain Plaintiffs social security number, and the Act does not apply to any disclosure required by federal law. Therefore, Defendants are not subject to the requirements of the Privacy Act and Plaintiffs claims should be dismissed. F. Claims under U.S.C. §§ 241 and 242. Plaintiffs civil claims under 18 U.S.C. §§ 241 and 242 are inappropriate because 18 U.S.C. §§ 241 and 242 are criminal statutes that do not provide for a civil remedy. These statutes create criminal penalties for deprivations of constitutional rights, effected by means of conspiracy or under color of state law. United States v. City of Philadelphia, 482 F.Supp. 1248, 1260 (E.D.Pa.1979). It is well-settled that these criminal statutes cannot be the bases for remedy in a civil suit. See e.g. Molina v. City of Lancaster, 159 F.Supp.2d 813, 818 (E.D.Pa.2001) (dismissing pro se plaintiffs civil rights claims under 18 U.S.C. §§ 241 and 242 because these statutes “do not create a civil cause of action enforceable by the Plaintiff’). Therefore, all of the counts in both of Plaintiffs Complaints that purport to allege causes of action under 42 U.S.C. §§ 241 and 242 are dismissed. G. Claims Under Title VII 1. Intentional Discrimination Although Plaintiff does not title any of his claims as causes of action under Title VII intentional discrimination, such a claim would fail as well. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003) (noting the court should apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name). To state a claim for discrimination on the basis of national origins under Title VII, the plaintiff must allege that 1) he is a member of a protected" }, { "docid": "23475701", "title": "", "text": "be called into operation, which is, ‘that Congress shall enforce by appropriate legislation the provisions of this article.’ “There is no legislation that could reach a State to prevent its passing a law. It can only reach the individual citizens of the State in the enforcement of law.” (Emphasis added.) As the Supreme Court stated relative to the scope of § 241, “despite subsequent statements to the contrary, nothing in the records of the congressional debates or the Joint Committee on Reconstruction indicates any uncertainty that its objective was the protection of civil rights.” United States v. Price, 383 U.S. 787, 801 n. 9, 86 S.Ct. 1152, 1160 16 L.Ed.2d 267 (1966). Admittedly, the crucial sections for plaintiffs — that is, the ones most central to their complaint—are 42 U.S.C. §§ 1983 and 1985(3). But, in discussing their legislative history to determine congressional intent, it is clearly relevant to consider the above discussion of 18 U.S.C. §§ 241, 242, as they are the criminal analogues to the civil remedies provided in §§ 1983, 1985(3). In fact, the Supreme Court in determining how the phrase “under color of” should be interpreted stated, “Thus, it is beyond doubt that this phrase should be accorded the same construction in both statutes—in § 1979 [now 42 U.S.C. § 1983] and in 18 U.S.C. § 242.” Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 483, 5 L.Ed.2d 492 (1961). So in deciding what Congress meant when it referred to “[e]very person” in 42 U.S.C. § 1983, it is significant that Congress had earlier rejected specifically absolute judicial immunity by passing the Civil Rights Act of 1866. As to the congressional debates surrounding the Ku Klux Klan Act of April 20, 1871, ch. 22, 17 Stat. 13, the very title of the bill reflects one of the main concerns that Congress had. On March 23, 1871, President Grant sent the following message to Congress: “A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous." }, { "docid": "15430812", "title": "", "text": "bases of a civil cause of action for damages. In addition to the general criminal conspiracy statute (Title 18, Sec. 371, U.S.C.) there is a Civil Rights criminal conspiracy statute (Title 18, Sec. 241, U.S.C.) which provides in part as follows: “Sec. 24-1. Conspiracy against rights of citizens “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or * -X- * * *• * “They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” We do not believe that these criminal conspiracy statutes can be construed to create a civil cause of action. While the general conspiracy statute (Sec. 371) requires an overt act, the overt act may or may not in any way invade the interest of the person towards whom the conspiracy is directed. Sec. 241 does not even require an overt act. In this connection, it should be noted that the Civil Rights conspiracy statute which does expressly create a civil cause of action (Title 42, Sec. 1985(3), U.S.C., discussed hereinafter in another context) applies only where the overt act causes injury. We now consider a Civil Rights statute which expressly creates a civil action for damages. This is Title 42, Sec. 1983, U.S.C. As stated, both plaintiffs rely on this statute, which provides as follows: “Sec. 1983: Civil Action for Deprivation of Rights. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Sisco alleges that defendants, knowing that they were acting illegally and wrongfully, fired into his truck," }, { "docid": "22585427", "title": "", "text": "If these deprivations can be found to be pursuant to a policy or custom of the City, the City is also liable. III. Municipal Liability Under Section 1983 In its Suggestion for Rehearing En Banc, the City urged that this case presents an appropriate occasion for this Court to clarify certain aspects of § 1983 municipal liability in the Fifth Circuit. The City argued that the panel so misunderstood the standards for such liability that it incorrectly found sufficient evidence to support the jury’s verdict against the City. This assertion is not supported by the record. The broad sweep of the statutory provision itself should first be emphasized: 42 U.S.C. § 1983. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____ When enacted almost 113 years ago, § 1983 was the first of four sections comprising the Civil Rights Act of 1871. It was reported as a bill “to enforce the provisions of the fourteenth amendment to the Constitution of the United States” and was popularly known as the “Ku Klux Klan Act.” The Act was part of a legislative response to the birth and spreading of violence in the South by the Ku Klux Klan and other similar groups following the Civil War. By 1871, it had become clear to Congress that the tacit complicity and deliberate inactivity of some Southern state and local officials insidiously fostered the Klan’s vigilante terrorism. So sections 2 through 4 of the Act were targeted at suppressing the officially-condoned private terrorism of the time. Section 1, now codified as § 1983, did no more than add civil remedies to the criminal penalties already established by the earlier 1866" }, { "docid": "2299463", "title": "", "text": "Downie v. City of Middleburg Heights, 301 F.3d 688, 696-97 (6th Cir.2002)(noting that an existing comprehensive legislative scheme that provides a meaningful remedy is a special factor counseling hesitation in implying a Bivens cause of action); Zerilli v. The Evening News Ass’n., 628 F.2d 217, 224 (D.C.Cir.1980)(noting that the defendant’s private status should counsel similar hesitation). See also Molina v. Richardson, 578 F.2d 846, 853 (9th Cir.1978) (citations omitted)(noting that a plaintiff with a statutory cause of action directly under the Constitution (42 U.S.C. § 1983) was in a different position than the plaintiff in Bivens, where it was damages or nothing). But see, Sarro, 248 F.Supp.2d at 61 (noting that Congress has not provided any comprehensive scheme or meaningful alternative remedy to inmates at privately operated prisons). Section 1983 derives from the Civil Rights Act of 1871, also known ás the Ku Klux Klan Act of 1871, and was created to curb unconstitutional behavior by state officials. Bell, 746 F.2d at 1232; Rodney E. Smolla, Civil Rights Actions, § 14.2 (3d ed.2001)(citing Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)); Erwin Chemerinsky, supra, § 8.2, at 454-55; Cook & Sobieski, supra, § 1.27 (2004)(citing Cong. Globe, 42d Cong., 1st Sess. 244 (1871)(noting that the Ku Klux Klan Act grew out of President Grant’s request for legislation to correct the evils that were beyond the control of state authorities)). Thus, the purpose of 42 U.S.C. § 1983 was to place the federal courts between the states and their citizens so that the courts could protect citizens from unconstitutional actions committed under color of state law. Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (citations omitted). In order to establish a cause of action under Section 1983, a plaintiff must allege the violation of a right protected by the Constitution or laws of the United States and demonstrate that the defendant acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101" }, { "docid": "9955396", "title": "", "text": "that violation of these statutes does not give rise to a civil cause of action. E. g., Brown v. Duggan, 329 F.Supp. 207 (W.D.Pa.1971) (18 U.S.C. §§ 241 and 242); Bryant v. Donnell, 239 F.Supp. 681 (W.D.Tenn.1965) (18 U.S.C. §§ 241 and 371). Nor has plaintiff proffered any policy arguments to support implying a civil cause of action for violation of these provisions in favor of a person in plaintiff’s position. With respect to the alleged violations of these provisions, then, plaintiff has failed to state a claim upon which relief can be granted. In the case of a violation of 15 U.S.C. § 2, however, a civil remedy is expressly provided by statute. 15 U.S.C. § 15. Here, however, plaintiff faces other difficulties. Count VI of his complaint alleges a violation of 15 U.S.C. § 2 consisting of an attempt to monopolize. “To be successful, an attempt case must establish both an intent to monopolize and a dangerous probability of successful monopolization.” George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547, 550 (1st Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975). Conspicuously absent from Count VI of plaintiff’s complaint is any allegation of dangerous probability of successful monopolization. “[T]his deficiency is fatal to the stating of a cause of action under Section 2 of the Sherman Act.” Unibrand Tire & Product Co. v. Armstrong Rubber Co., 429 F.Supp. 470, 477 (W.D.N.Y.1977). As noted above, in a memorandum filed subsequent to the May 30, 1979 hearing on the motions to dismiss, plaintiff has asserted two additional grounds for liability, 42 U.S.C. §§ 1983 and 1985(3). 42 U.S.C. § 1983 provides, in part, that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects . . . any citizen of the United States . to the deprivation of any rights . secured by the Constitution and laws, shall be liable to the party injured . . .” Plaintiff has not alleged any facts which would support an inference that any of the" }, { "docid": "22206864", "title": "", "text": "rights (at least the right to vote) from privately exercised economic intimidation as well as from more violent forms of coercion. The current civil rights statutes do just that. See United States v. Beaty, supra Note 5. Even “conduct that might be perfectly legal, if not colored by the bad intent of interfering with the right to [register and] vote” may become “illegal upon proof of such illegal intent.” United States v. Bruce, supra Note 5, 353 F.2d at 476, where the intimidation took the form of a conspiracy by landlords to invoke the state trespass laws to keep one Brown, a Negro insurance collector, from reaching many of his policyholders who were tenants on their land. Brown had been active in urging his friends and neighbors to vote and the court felt that the allegations of the complaint, which had been dismissed below, .made a showing from which it could be inferred that the landlords’ ban of Brown was in reprisal for his participation in the voter registration drive. See also United States by Katzenbach v. Original Knights of the Ku Klux Klan, E.D.La, 250 F.Supp. 330 (1965), and cases discussed therein. . 42 U.S.C. § 1983 (1964 ed.) establishes a right of action for the deprivation of any “rights, privileges, or immunities secured by the Constitution and laws” only against persons acting under color of law. And only under color of the law of a state or territory. Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581 (1949), cert, denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). 42 U.S.C. § 1985(3) (1964 ed.), which establishes a right of action against inter ference or intimidation by private individuals, requires a conspiracy by two or more persons. . See note 36 on page 699. 36. 18 U.S.C. § 241 which provides criminal penalties for interference with rights or privileges secured by the Constitution or laws of the United States requires a conspiracy, while 18 U.S.C. § 242 (1964 ed.) penalizes only those acting under color of law. (Section 242 is not, however, limited to those acting under" } ]

[ { "docid": "22358601", "title": "", "text": "(1951), 155 Ohio St. 552, 99 N.E.2d 772. Further, even if Allstate’s settlement were an admission of liability, the value of the injuries suffered by appellant would still need to be determined in an action against the alleged tortfeasor. Id. at 299 (emphasis added). Additionally, in a case in which a third party brought a claim against an insurer alleging that it had unreasonably refused to settle a suit pending between its insured and the third party, the Ohio Court of Appeals declared the following: Ohio recognizes a duty incumbent upon insurance companies to act in good faith in settling claims, but this duty runs only from the insurer to the insured, not to third parties. Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 452 N.E.2d 1315. Any claims of bad faith negotiations by third-party claimants cannot be based on speculation, but must arise from adjudicated liability. Chitlik, supra. D.H. Overmyer Telecasting Co. v. American Home Assurance Co., 29 Ohio App.3d 31, 502 N.E.2d 694, 698 (1986) (emphasis added). Based on the foregoing, we hold that under Ohio law, where the insurer has not refused to defend the insured, but has only refused to settle the case, an injured third party cannot sue the insurer directly, or via assignment, for bad faith refusal to settle in the absence of an adjudicated excess judgment against the insured. D. Romstadt next argues that the district court erred in denying his motion for summary judgment. This court reviews a district court’s decision to deny a motion for summary judgment for an abuse of discretion. Southward v. South Central Ready Mix Supply Corp., 7 F.3d 487, 492 (6th Cir.1993); Pinney Dock & Trans. Co. v. Penn Central Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. Southward, 7 F.3d at 492. “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the" } ]

[ { "docid": "5958668", "title": "", "text": "that the district court had authority to dismiss under Rule 37(b) or Rule 41(b) and its inherent authority. In reviewing a district court’s dismissal under either Rule 37(b)(2) or Rule 41(b), we consider four factors: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Knoll v. Am. Tel. & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious conduct. Acevedo has the burden of showing that his failure to comply was due to inability, not willfulness or bad faith. Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). Thus, it is presumed that dismissal is not an abuse of discretion if the party has the ability to comply with a discovery order but does not. Claimant has not proffered anything to overcome this presumption. Claimant did not file his petition until five months after his wife’s death, nor did he explain how his mother’s illness impeded his ability to gather the necessary documents. He claims a language barrier and poor record keeping, but he did not explain why he did not sign the bank authorizations and send them on in a timely fashion so that the United States could seek the documents itself. Counsel’s conduct is also attributable to his client. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Harmon, 110 F.3d at 367-69. Nor do the other factors change the result. The United States suffered prejudice in that it could not comply with the district court’s September 15, 2000 discovery deadline. Without answers to document requests, the Government could not schedule depositions or other discovery. Although Claimant did not have a prior warning, the United States’s motion to strike provided some notice. Cf. Harmon, 110 F.3d" }, { "docid": "17661317", "title": "", "text": "of whether the district judge abused his discretion when he denied that motion. We hold that he did. In Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C. Cir. 1977), the plaintiff sought reinstatement under Rule 60(b) after the district court dismissed with prejudice because the plaintiff’s attorney failed to obey the judge’s instructions to report to the court on progress in settlement negotiations within 30 days. We vacated that dismissal. Although in Jackson the narrow ground for our decision was the possibility that the plaintiff’s lawyer had actually misled his client, we there stated our view that [tjrial court dismissal of a lawsuit never heard on the merits is a drastic step, normally to be taken 'only after unfruitful resort to lesser sanctions. And while appellate review is limited ... to whether judicial discretion has been abused, a sound discretion hardly comprehends a pointless exaction of retribution. Jackson v. Washington Monthly Co., 569 F.2d at 123 (footnote omitted). We noted further that the dismissal was predicated upon but a single violation by counsel of a pretrial directive, while in Link v. Wabash Railroad Company, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) and its progeny, dismissals due to counsel’s conduct were approved only after a course of protected neglect. Id. at 121. Finally we considered that although the defendant argued that he was prejudiced by counsel’s negligence, the issue of prejudice was not even addressed by the trial judge. Many of the same concerns that we expressed in Jackson mandate the result we reach today. There we noted our disapproval of the drastic remedy of dismissal for just one violation of a court order by counsel. The instant case does not even present, technically speaking, one instance of a failure to obey a court directive. Although the pretrial order had established December 12 as the date by which discovery was to be completed, the order dismissing the case was entered eight days earlier. It is true that a failure to answer defendants’ interrogatories by December 4 made the completion of discovery by December 12 a near impossibility." }, { "docid": "22083882", "title": "", "text": "court to review the record and enter a final judgment. A district court may dismiss an action for failure of a plaintiff to prosecute or to comply with any order of court. Fed.R. Civ.P. 41(b). The court possesses the inherent authority to dismiss the action sua sponte, without motion by a defendant. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). The standard of review for a Rule 41(b) dismissal is whether the district court abused its discretion in dismissing the action. Link, 370 U.S. at 633, 82 S.Ct. at 1390; Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982). The dismissal of appellant’s action at this juncture does not constitute an abuse of discretion. Appellant’s cause of action accrued during his incarceration. Under Texas law, the statute of limitations does not run while the injured party is incarcerated, as confinement is considered a disability of the plaintiff. Tex.Rev.Civ. Stat.Ann. art. 5535 (Vernon 1968). See Williams v. Dallas County Commissioners, 689 F.2d 1212, 1216 (5th Cir.1982), cert. denied, 461 U.S. 935, 103 S.Ct. 2102, 77 L.Ed.2d 309 (1983). Although appellant has since been released on parole, there is no indication that the statute of limitations on his action has run. Further, if the period had indeed run, appellant would have been able to argue that the dismissal, although “without prejudice,” actually constituted abuse of discretion since he would have been prevented from filing the suit again. See Burden v. Yates, 644 F.2d 503, 505 (5th Cir.1981). Because the dismissal was without prejudice and the appellees concede no statute of limitation bars the refiling of appellant’s claim, appellant has not suffered prejudicial harm resulting from the dismissal. In such circumstances trial courts must be allowed leeway in the difficult task of keeping their dockets moving. Failure to attend a hearing is a critical default. AFFIRMED. . McCullough’s \"motion for reconsideration,” filed in the district court, does not reflect service on the defendants and therefore was not a timely Fed.R.Civ.P. 59(e) motion. If it had been it would have nullified his notice of" }, { "docid": "23076615", "title": "", "text": "August 17, 1983, thus depositions could have been taken as early as September 17,1983. The taxpayer then had just over seven months, until the original discovery deadline of April 23, 1984, in which to complete depositions. On May 16, 1984, an additional 13 days was provided for discovery. On January 2, 1985, an additional 13 days was provided for discovery. Taxpayer had eight months in which to take depositions. Taxpayer sought extensions of discovery immediately prior to scheduled trial settings and on the morning of trial. The government opposed these requests on several grounds. The government suggested that defendant Norrell C. Smith was entitled to a prompt resolution of the matter. The government also suggested that the two named witnesses taxpayer sought to depose at the eleventh hour were not relevant to the narrow issue to be tried. The trial court so concluded: “The discovery requested by plaintiff could not reasonably have led to evidence relevant to the sole issue to be decided at trial.” Record vol. I at 320-21; 334-35. The trial judge acted well within the range of allowable discretion in denying taxpayer’s motions to reopen discovery. As noted, the trial judge dismissed taxpayer’s action when, on the morning of trial, lead counsel announced that he had conferred with co-counsel and the taxpayer and that taxpayer’s case would not proceed without additional discovery. A dismissal for failure to prosecute is reviewed under an abuse of discretion standard. Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). Guidelines have been developed concerning the exercise of this discretion in cases concerning the failure to obey scheduling or pretrial orders as required by Fed.R.Civ.P. 16(f). In re Sanction of Baker, 744 F.2d 1438, 1442 (10th Cir.1984) (en banc), cert. denied, 471 U.S. 1014, 105 S.Ct. 2016, 85 L.Ed.2d 299 (1985). In Link, the Court sustained a Fed.R. Civ.P. 41(b) dismissal for failure to prosecute based on counsel’s failure to appear at a pretrial conference. In reaching this result, the Court considered the effect on counsel’s client. There is certainly no merit to the" }, { "docid": "3509018", "title": "", "text": "which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed interve-nor’s failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989). “The determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances.” Jansen, 904 F.2d at 340. We will find an abuse of discretion only when left with the “definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors” or where it “improperly applies the law or uses an erroneous legal standard.” Huey v. Stine, 230 F.3d 226, 228 (6th Cir.2000) (citations and internal quotations omitted). 1. Stage of the Proceeding CMRA contends that the district judges abused their discretion when they denied the motions to intervene. CMRA argues it did not become aware of its independent interest to intervene until the implementation of the settlement agreements required its members to provide community-based services to individuals without a guarantee of sufficient payment by the State of Tennessee. CMRA cites to Grubbs and Linton v. Commissioner, 973 F.2d 1311 (6th Cir.1992), for the proposition that interve-nors can timely appeal during the remedial stages of a consent decree. See Grubbs supra; Linton, supra. We have recently stated that the time of intervention is not the determining factor but rather that “all circumstances” must be examined to determine the substantive progress that has occurred in the litigation. See Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir.2000) (“The propriety of intervention in any given case, however, must be measured under ‘all circumstances’ of that particular case.”) (citing NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973)). If the litigation has “made extensive progress in the district court before the" }, { "docid": "22186090", "title": "", "text": "calendar on September 17, 1984, plaintiff’s counsel failed to appear, but instead reported to Superior Court. He sent an attorney not of record in the case to the district court to move for a continuance. The defendants, with their attorney and witnesses present in court, opposed the motion for continu- anee and moved that the case be dismissed for lack of prosecution. The district court judge stated that to grant the motion for continuance would punish the defendant doctors, who had can-celled appointments with patients to be ready for trial. The judge said, “I’m not accustomed to having lawyers ignore the court, and the only time I have ever seen or heard from [plaintiff’s counsel] has been when he came to pretrial conference. Other than that, he’s ignored everything the court has directed or required, including coming here this morning.” The district court granted defendants’ motion to dismiss for want of prosecution. A district court is authorized, on defendant’s motion, to dismiss an action for failure to prosecute or to obey a court order or federal rule. Fed.R.Civ.P. 41(b). The court’s power to dismiss is an inherent aspect of its authority to enforce its orders and insure prompt disposition of lawsuits. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983). The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id.; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). Dismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances. Jones v. Graham, 709 F.2d at 1458. The task of the reviewing court is to determine whether the trial court, in exercising its authority to dismiss, abused its discretion. Id. The district court found that plaintiff’s counsel engaged in a pattern of delay and deliberately refused to comply with the directions of the court. This finding is supported by the record. Despite the court’s" }, { "docid": "14149352", "title": "", "text": "see also Duffy v. Ford Motor Co., 218 F.3d 623, 629 (6th Cir.2000) (stating that conditions placed on a Rule 41(a)(2) dismissal are reviewed for abuse of discretion). It is an abuse of discretion for the district court to rely on erroneous findings of fact, apply the wrong legal standard, misapply the correct legal standard, or make a clear error in judgment. Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.2006). At the outset, defendants argue that the district court abused its discretion by failing once again to sufficiently explain its reasons — on a case-by-case basis — for not requiring the payment of defendants’ attorney fees as a condition of dismissal under Rule 41(a)(2). This argument both misreads our prior decision and mischaracterizes the district court’s decision. Our remand was based on a determination that the district court’s implicit denial of defendants’ requests for attorney fees without articulating any reasons for the denial preeluded review under the abuse-of-discretion standard. 481 F.3d at 930-31. We said that, as in DWG: “ ‘The difficulty we face is that the court’s silence prohibits us from examining the soundness of its discretionary judgment. There may well be convincing reasons for denying the motion for costs. But unless such grounds are made explicit we cannot know for sure.’ ” 481 F.3d at 930 (quoting DWG, 962 F.2d at 1202). Although the district court’s orders on remand remained brief, each order adopted the magistrate judge’s findings and conclusions and explicitly denied defendants’ request that attorney fees be imposed as a condition of dismissal under Rule 41(a)(2). We have no difficulty concluding that there was individual consideration of the cases and that the record is sufficient to allow appellate review of the soundness of the district court’s exercise of its discretion. Turning to the merits, the purpose of Rule 41(a)(2) is to protect the nonmovant, here the defendants, from unfair treatment. Grover, S3 F.3d at 718. “Generally, an abuse of discretion is found only where the defendant would suffer ‘plain legal prejudice’ as a result of a dismissal without prejudice, as opposed to facing" }, { "docid": "11010764", "title": "", "text": "The complained of excluded medical evidence, if relevant at all, was redundant and would have added nothing new for the jury’s consideration of excessive force. Consequently, the trial court did not abuse its discretion in denying its introduction. In Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir.1988), the court stated: Appellant must show substantial prejudice before we will grant a new trial based on an alleged Rule 26(e) error. In the instant case, the district court struck only those portions of Mr. Lebo’s testimony that did not conform to his deposition testimony, i.e., that there was no lockout device to deactivate the continuous miner while still allowing the bridge units to be operated for clean out and that there was no pull-cord device to grab in an emergency. Appellant argues that since the substance of the bulk of the excluded testimony was furnished by other witnesses, admission of this testimony would not have prejudiced Long-Airdox unfairly. This argument, however, convinces the court that because the substance of the excluded testimony was furnished by other witnesses for appellant, its exclusion was not prejudicial to appellant. For this reason, we reject appellant’s argument. Id. at 1153 (citation omitted & emphases added). Evidentiary rulings of a trial court are reviewed for an abuse of discretion. Ham-ling v. United States, 418 U.S. 87, 124-25, 94 S.Ct. 2887, 2911-12, 41 L.Ed.2d 590 (1974). This circuit has determined that: An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995) (citations omitted); see In re Bendectin Litigation, 857 F.2d 290, 307 (6th Cir.1988) cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989). The Supreme Court explains the “clearly erroneous” standard of review as alluded to in Romstadt, in the following commentary: Although the meaning of the phrase “clearly erroneous” is not immediately apparent," }, { "docid": "22937890", "title": "", "text": "new counsel. Plaintiff and counsel were warned that if someone did not proceed with the trial of plaintiffs case, the court would have no alternative but to enter a dismissal for lack of prosecution. The court then requested an explanation from plaintiffs counsel for their failure to prepare for trial. Counsel proffered three reasons: (1) the court had stubbornly refused to grant a continuance despite its knowledge of counsel’s conflict; (2) the actions of defendants and the court’s discovery rulings had made discovery next to impossible; and (3) lead counsel was physically and emotionally incapable of handling back-to-back trials. When questioned by the court as to . why they had not timely requested a continuance pursuant to the clear written instructions contained in the August trial order, counsel could offer no explanation. After tracing the history of counsel’s dilatory conduct, the court dismissed the case without prejudice for failure to prosecute. The court later issued nunc pro tunc orders on all motions upon which it had not previously ruled. This appeal followed. II. Rule 41(b) of the Federal Rules of Civil Procedure gives courts the authori ty to dismiss a case for “failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” This measure is available to the district court as a tool to effect “management of its docket and avoidance of unnecessary burdens on the tax-supported courts [and] opposing parties.” Matter of Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir.1984). A district court must be given substantial discretion in serving these tasks; accordingly, we review a district court’s Rule 41(b) dismissal for abuse of discretion. Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.1993). We will therefore reverse the district court’s dismissal only if we have 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). In Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court offered guidance concerning the proper scope of Rule 41(b)" }, { "docid": "23125232", "title": "", "text": "to comply with the court’s pretrial orders. It is indisputable, I think, that our standard of review is whether the district court has abused its discretion. See Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Consolidation Coal Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir.1983); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2370 at 203 (1971). Nevertheless, this court, without finding any abuse of discretion or even acknowledging the existence of that standard, and without finding any violation of Fed.R.Civ.P. 41(b), has reversed the district court’s judgment and ordered the case reinstated. In my judgment, the court errs in doing so and I must respectfully dissent. It is elemental, I think, that a federal trial court has the inherent power to control its docket in a number of ways, including the power to order dismissal of civil cases in which the prosecuting party does not diligently move the case to conclusion by obeying the court’s pretrial orders to appear when required to do so. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an “inherent power,” governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. Link, 370 U.S. at 630-31, 82 S.Ct. at 1389. In addition to that inherent power, a trial court is specifically empowered by Fed.R. Civ.P. 41(b) to order involuntary dismissal of cases “[f]or failure of the plaintiff to prosecute or to comply with ... any order of the court....” To properly determine whether the district court abused its discretion in dismissing the plaintiff’s case, it is necessary to examine the docket-record history of the case, and to gain, thereby, an appreciation of the plaintiff’s record of nonprosecution of the case, the prejudice suffered by the defendant as a result, and the history of the trial court’s patience with the plaintiff. The majority opinion declares that the district court dismissed the plaintiff’s “pro se" }, { "docid": "10103194", "title": "", "text": "the Sherman Act from a dismissal with prejudice to a dismissal without prejudice, thereby opening the way for the plaintiffs to commence a subsequent action predicated upon the same core of law and fact. The majority in the instant appeal errs in this conclusion. The 1983 panel could have modified the 1982 dismissal only if it had concluded that the district court had abused its discretion under Rule 41(b) in dismissing the 1981 complaint with prejudice. “[T]he scope of review over an order of dismissal accorded an appellate court is extremely narrow, confined solely to whether the control has been exercised within the permissible range of the trial court’s discretion.” Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855, 20 A.L.R.Fed. 482, 486 (2nd Cir.1972) (per curiam); accord Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Bishop v. Cross, 790 F.2d 38, 39 (6th Cir.1986); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985) (per curiam); Johnson v. Hubbard, 698 F.2d 286, 290 (6th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980); Shaw, 554 F.2d at 789; cf. Harris v. Callwood, 844 F.2d 1254, 1257-61 (6th Cir.1988) (Ryan, J., dissenting). However, the 1983 panel affirmed the district court’s dismissal of the Guzowskis’ 1981 antitrust action without ever considering the issue of whether the district court had abused its discretion in dismissing that action with prejudice. The issue was neither raised nor discussed by the parties to the 1983 appeal. Because the panel in the 1983 appeal made no determination, either expressly or impliedly, that the district court had abused its discretion in dismissing the appellants’ 1981 complaint with prejudice, I am constrained to conclude that the district court’s 1982 dismissal with prejudice as to all of the appellants’ claims must be given preclusive effect, and that the district court in the present appeal correctly concluded that the Guzowskis were barred by res judicata from bringing any cause of action in their 1984 complaint" }, { "docid": "1684092", "title": "", "text": "counsel — which they did— the plaintiffs would be responsible for the costs. See id. at 466. While noting that there may be some due process concerns associated with assessing costs directly against the attorney rather than the client, see id., and acknowledging that clients are generally held responsible for the acts of their attorneys, who are their “freely selected agent[s],” id. at 467 (quoting Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)), the court of appeals nonetheless found an abuse of discretion. The court noted that if the attorney was to blame for the neglectful prosecution of the lawsuit, the attorney should bear the sanctions. See id. The court therefore ordered the district court to consider on remand the relative culpability of the attorney and the plaintiffs when determining how the defendants’ costs should be allocated. See id. at 468 & n. 7. We find it useful to analogize the instant case to those cases dealing with Rule 41(b) involuntary dismissals. The district court’s actions in the instant case, as in the case of an involuntary dismissal with prejudice, have brought about the severe result of depriving the plaintiffs of a day in court to resolve their claims on the merits. See Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994). Therefore, while recognizing that the Duffys freely chose their counsel and are consequently responsible for most of the decisions made by that counsel, we nonetheless believe that in this particular case, where the Duffys were not necessarily even aware of the choices faced by their counsel and were given insufficient notice of the possi ble consequences of those choices, the Thomases rather than their clients should be required to pay if the Thomases are to blame for Ford’s wasted costs. See id. There is evidence in this case that the Duffys’ counsel were primarily to blame for the necessity of requesting a voluntary dismissal, and, as discussed above, the Duffys claim that the dismissal of the first action was equivalent to a dismissal with prejudice, because they are unable" }, { "docid": "23125231", "title": "", "text": "Judge Ryan points out, the Clerk’s office record showed that notice of the second pre-trial conference was mailed to appellant (on which the district court relied), but it is also true that appellant promptly filed a motion to set aside the dismissal, claiming that she had not actually received the notice, which motion the district court denied without further inquiry. Since I do not believe that this panel can or should overrule the decisions of prior panels, I concur with the majority opinion. I would add that the standard for dismissal applied by the majority opinion has the advantage of some certainty. Moreover, it would appear that, as a general practice, it would be well to include in all orders, such as those setting pre-trial conferences, that failure to appear may result in dismissal with prejudice without further notice. RYAN, Circuit Judge dissenting. The district court dismissed the plaintiff’s complaint, presumably on the authority of Fed.R.Civ.P. 41(b), although the district court’s order does not say so, for the plaintiff’s failure to prosecute the action and to comply with the court’s pretrial orders. It is indisputable, I think, that our standard of review is whether the district court has abused its discretion. See Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Consolidation Coal Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir.1983); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2370 at 203 (1971). Nevertheless, this court, without finding any abuse of discretion or even acknowledging the existence of that standard, and without finding any violation of Fed.R.Civ.P. 41(b), has reversed the district court’s judgment and ordered the case reinstated. In my judgment, the court errs in doing so and I must respectfully dissent. It is elemental, I think, that a federal trial court has the inherent power to control its docket in a number of ways, including the power to order dismissal of civil cases in which the prosecuting party does not diligently move the case to conclusion by obeying the court’s pretrial orders to appear when required" }, { "docid": "2115239", "title": "", "text": "(6th Cir.2006) (internal quotation marks omitted). III. ANALYSIS It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980). Nonetheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only in extreme situations showing a clear record of contumacious conduct by the plaintiff.” Wu, 420 F.3d at 643 (internal quotation marks omitted). In Link, the Supreme Court stated that there was “no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client.” Link, 370 U.S. at 633, 82 S.Ct. 1386. Although this principle — that generally it is not unduly unfair to punish a client for his counsel’s errors — remains valid, “we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994); see Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir.2001) (“[T]his Court has expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party’s attorney.”). This is because dismissing a plaintiffs case with prejudice “deprives a plaintiff of his day in court due to the inept actions of his counsel.” Patterson v. Twp. of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985). Accordingly, “[dismissal is usually inappropriate where the neglect is solely the fault of the attorney.” Carter, 636 F.2d at 161. Under this court’s precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court’s discretion: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal" }, { "docid": "22399165", "title": "", "text": "parties to appear at a status hearing, and again warned that if the schedule was not adhered to, dismissal would be forthcoming. At the December 1983 status hearing, the court set both a discovery cutoff date (March 30, 1984) and an extended deadline for the filing of the Rule 42 statement (April 30, 1984). On April 17, 1984, the court granted a further extension for the Rule 42 filing because plaintiff had in the interim moved for summary judgment. The parties were then given 30 days from June 7, 1984 to complete their Rule 42 filing. On the day before the filing was due, however, plaintiff requested an additional continuance. Judge Muecke granted this fourth continuance with an express warning that the case would be dismissed with prejudice if the Rule 42 filing was not made by July 26,1984. Plaintiff promised opposing counsel a draft of the proposed order by July 13, but, no draft was received until July 23, three days before the due date. At 5:00 p.m. on July 26, the due date, plaintiff requested a fifth extension over the telephone from the district court; it was denied. In accordance with his warning, the district court dismissed the complaint with prejudice because the Rule 42 filing had never been made. DISCUSSION The dismissal in this case is properly reviewed as a dismissal for failure to prosecute under Fed.R.Civ.P. 41(b). E.g., Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir.1981). The district court has the inherent power sua sponte to dismiss a case for lack of prosecution. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.1984) (citing Link v. Wabash R.R., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962)). We reverse such a dismissal only upon a finding of an abuse of discretion. Id. at 495. Henderson advances four major arguments in support of his claim that the district court abused its discretion: (1) dismissal is too harsh a sanction where counsel has not engaged in outrageous conduct and was trying to prepare the materials under the rules but was merely untimely; (2) no actual" }, { "docid": "3509017", "title": "", "text": "substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). A district court’s denial of intervention as of right is reviewed de novo, except for the timeliness element, which is reviewed for an abuse of discretion. See Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.1999) (citing Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990)). A.Timeliness CMRA contends that now is the appropriate time to intervene and that it filed its motions timely because it learned shortly prior to bringing its motions that its interests were not being represented by the existing parties. We have identified several factors to be established in determining whether a request for intervention is timely: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed interve-nor’s failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989). “The determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances.” Jansen, 904 F.2d at 340. We will find an abuse of discretion only when left with the “definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors” or where it “improperly applies the law or uses an erroneous legal standard.” Huey v. Stine, 230 F.3d 226, 228 (6th Cir.2000) (citations and internal quotations omitted). 1. Stage of the Proceeding CMRA contends that the district judges abused" }, { "docid": "8802491", "title": "", "text": "“Plaintiffs have failed to furnish discovery from their expert witnesses by the discovery deadline of August 31, 1995, despite the fact that Defendant has sent five letters and made at least four telephone calls to Plaintiffs’ counsel during the months of June, July and August in an unsuccessful attempt to schedule depositions of Plaintiffs’ expert witnesses.” -Although the sanction imposed by the district court for plaintiffs’ alleged discovery violations was the preclusion of plaintiffs’ expert witness testimony at trial, this sanction, in effect, resulted in the dismissal of plaintiffs’ medical malpractice case, because without expert testimony, plaintiffs had no claim to present. Therefore, we will review the district court’s actions pursuant to Fed.R.Civ.P. 37 as a sanction for discovery violations that resulted in dismissal of plaintiffs’ case with prejudice. See Societe Internationale v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958) (motion for dismissal for failure to comply with discovery order properly brought under Rule 37); Coleman v. American Red Cross, 23 F.3d 1091, 1094 n. 1 (6th Cir.1994) (factors considered when reviewing a dismissal under Rule 37(b), Rule 41(b), or a court’s inherent power are largely the same). An order of the district court imposing sanctions under Rule 37(b) for willful failure to cooperate in discovery is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). Under Fed.R.Civ.P. 37(b)(2), a district court may sanction parties who fail to comply with its orders in a variety of ways, including dismissal of the lawsuit Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990). The' use of dismissal as a sanction for failing to comply with discovery has been upheld because it accomplishes the dual purpose of punishing the offending party and deterring similar litigants from misconduct in the future. National Hockey League, 427 U.S. at 642-43, 96 S.Ct. at 2780-81. In the present case, the district court’s pretrial order of January 25, 1995 set a August 31, 1995 date for discovery cutoff, yet the" }, { "docid": "22937912", "title": "", "text": "the plaintiffs dilemma, the facts simply do not support the conclusion that the counsel’s failure to proceed on February 25 was contumacious. Under the four factors this court should consider to determine whether a district court’s dismissal of a case was an abuse of discretion, see Stough, 138 F.3d at 615, the facts of this case weigh in favor of not dismissing Knoll’s case. First, there is no evidence that Knoll’s counsel acted in bad faith. Counsel repeatedly sought extensions of time and felt that proceeding with the case without a continuance would have been ethically improper. Second, there is no evidence that AT & T would be prejudiced by a continuance. AT & T did not object to any of Knoll’s motions for a continuance. Third, although one might reasonably conclude that a party is presumed to be on notice that failing to proceed on the morning of trial could lead to dismissal, the events surrounding the scheduled commencement of this trial, especially the district judge’s vague oral responses to Knoll’s unopposed motions for a continuance, indicate that Knoll may well have been surprised by the judge’s decision to dismiss the case. Finally, the district court did not impose less drastic sanctions, and there is no evidence that it considered such an alternative. As the majority noted, this court has “increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994). Not only was there no showing that a delay in the trial for Knoll’s counsel to prepare or for Knoll to find other representation would prejudice AT & T in any way, but also AT & T did not object to Knoll’s request for a continuance. Considering all of the relevant facts and extenuating circumstances surrounding the scheduled commencement of trial, I would hold that the district court abused its discretion under this court’s precedents by failing to explore alternatives, including monetary sanctions imposed on counsel, for reprimanding Knoll’s dilatory counsel. For the reasons stated above, I respectfully dissent." }, { "docid": "23083236", "title": "", "text": "returned to the district court, the Red Cross, filed a motion to dismiss pursuant to Rule 41(b). In support of its motion, the Red Cross claimed that it was substantially prejudiced by the .Colemans’ intentional violation of the protective order. The district court found that the facts supported this assertion and entered an order to dismiss the complaint.- The Colemans then filed this appeal. II. Under Rule 41(b) of the Federal Rüles of Civil Procedure, when a plaintiff fails to comply with any order of the court, the defendant may move for dismissal of the action. Court orders imposing sanctions under this rule are reviewable only for abuse of discretion. Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir.1980). In the past, we have upheld the use of “dismissals as a sanction for failing to comply with discovery orders because it accomplishes the dual purposes of punishing the offending party and deterring similar misconduct by future litigants.” Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir.1988) (citations omitted). In response to the argument that a party should not be required to suffer harm for an attorney’s derelictions, the Supreme Court stated: There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexeused conduct imposes an unjust penalty on the client. Petitioner voluntarily ■ chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with oúr system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (citation omitted). Despite the Supreme Court’s unequivocal language, this court, like many others, has been extremely reluctant to uphold the dismissal of a case merely to discipline an attorney. Buck v. United States Dep’t of Agric., 960 F.2d 603," }, { "docid": "2115238", "title": "", "text": "was based on Carpenter’s counsel’s repeated noncompliance with the local rules, his uncooperativeness in negotiating a stipulation relating to a second amended complaint, and his failure “to take appropriate actions to pursue the claims asserted in this case.” R. 26 (Order Dismissing Case at 4) (Page ID # 138). Carpenter timely appealed. II. STANDARD OF REVIEW We review for abuse of discretion a district court’s dismissal of an action for failure to prosecute. Tung-Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.2005). “An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir.1998). We will find an abuse of discretion if the district court “relies on clearly erroneous findings of fact, ... improperly applies the law, or uses an erroneous legal standard.” Id. Correspondingly, “[a] clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard.” Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 906 (6th Cir.2006) (internal quotation marks omitted). III. ANALYSIS It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980). Nonetheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only in extreme situations showing a clear record of contumacious conduct by the plaintiff.” Wu, 420 F.3d at 643 (internal quotation marks omitted). In Link, the Supreme Court stated that there was “no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client.” Link, 370 U.S. at 633, 82 S.Ct. 1386. Although this principle — that generally it is not unduly unfair to punish a client for his counsel’s errors — remains valid, “we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent" } ]

[ { "docid": "22765050", "title": "", "text": "evidence. It is frequently stated that a motion for a new trial on this ground ordinarily is nonreviewable because within the discretion of the trial court. Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147; Zegan v. Central R. Co., 3 Cir., 1959, 266 F.2d 101; Menneti v. Evans Construction Co., 3 Cir., 1958, 259 F.2d 367. But this discretion must still be exercised in accordance with ascertainable legal standards and if an appellate court is-shown special or unusual circumstances-which clearly indicate an abuse of discretion in that the trial court failed to apply correctly the proper standards, reversal is possible. See e. g. Indamer Corporation v. Crandon, 5 Cir., 1954, 217 F.2d 391. Concededly appellate courts rarely find that the trial court abused its discretion. In Commercial Credit Corp. v. Pepper,. 5 Cir., 1951, 187 F.2d 71, 75-76, Judge Borah stated: “It is a principle well recognized in the federal courts that the-granting or refusing of a new trial is a matter resting within the discretion of' the trial court. The term ‘discretion’,, however, when invoked as a guide to judicial action, means a sound discretion, exercised with regard to what is right and. in the interests of justice. And an appellate court is not bound to stay its hand'. and place its stamp of approval on a case when it feels that injustice may result, Quite to the contrary, it is definitely recognized in numerous decisions that an abuse of discretion is an exception to the rule that the granting or refusing of a new trial is not assignable as error.” Thus an appellate court must still rule upon the propriety of an order for a new trial, even though the grounds for reversal are exceedingly narrow. But before any rational decision can be made, the reviewing court must know what standards the trial judge is bound to apply when ruling upon a motion for a new trial, These standards necessarily vary according to the grounds urged in support of the new trial. There is, however, little .authority on what" } ]

[ { "docid": "12947158", "title": "", "text": "denied Dresser’s post-verdict motions for (1) judgment as a matter of law and (2) remittitur or a new trial. Dresser now appeals the denial of these motions. We review de novo the district court’s ruling on a motion for judgment, as a matter of law. See Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 280 (5th Cir.2002) (citation omitted). However, when an action is tried by a jury, such a motion is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir.2000), cert. denied, 532 U.S. 1007, 121 S.Ct. 1734, 149 L.Ed.2d 658 (2001). Accordingly, we consider the evidence “drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party[J” Id. Furthermore, we must always keep in mind “that our standard of review with respect to a jury verdict is especially deferential.” Id. Thus, we will reverse “only if no reasonable jury could have arrived at the verdict.” Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.1998) (citation omitted), cert. dismissed, 526 U.S. 1083, 119 S.Ct. 1493, 143 L.Ed.2d 575 (1999). We review the denial of a motion for new trial for abuse of discretion. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir.1998) (“Absent a clear showing of an abuse of discretion, we will not reverse the trial court’s decision to deny a new trial.”) (citations and internal quotation marks omitted). II We first address Dresser’s arguments with respect to liability. A (1) Dresser argues that it is not liable for the breach of the express or implied warranties because the statute of limitations bars any warranty-based cause of action. The Mississippi version of the UCC sets out the statute of limitations for contract claims: (1) An action for breach of any contract for sale must be commenced within six (6) years after the cause of action has accrued. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach" }, { "docid": "7389666", "title": "", "text": "implied warranties made part of the contract by operation of law. The district court, relying on § 2-207(3) of the UCC, instructed the jury in the application of express warranties, such as price and quantity, and implied warranties, such as merchantability and fitness for a particular purpose. Instruction No. 14 set forth the elements of breach of an implied warranty of fitness for a particular purpose. The jury returned a special verdict finding that (1) McGill had made express warranties to Frigidaire and had breached those warranties, but that the breach was not the direct cause of any damages to Frigidaire; (2) McGill had breached the implied warranty of merchantability, but that the breach was not the direct cause of any damages to Frigidaire; and (3) McGill had not breached any implied warranty of fitness for a particular purpose and, therefore, was not the direct cause of any damages to Frigidaire. Based on these findings, the jury did not award any damages. Frigidaire then filed a motion for a new trial, arguing that the jury’s verdict was inadequate, perverse, and against the greater weight of the evidence and that the instructions were erroneous. The district court concluded that the evidence supported the jury’s verdict, found no instruction errors and denied Frigidaire’s motion. Id., slip op. at 2 (Sept. 10, 1997) (order denying motion for a new trial). This appeal followed. Discussion I. Denial of Motion for Partial Summary Judgment Frigidaire first argues the district court erred in denying its motion for partial summary judgment. Frigidaire also argues the district court erred in denying its motions in limine to exclude evidence of McGill’s contract terms and in instructing the jury. As noted by the district court, the motions in limine and the instructions, as well as the motion for new trial in part, essentially asked the district court to reconsider its order denying Frigidaire’s motion for partial summary judgment. A denial of summary judgment is interlocutory in nature and is ordinarily not appealable after trial and judgment. See Cowan v. Strafford R-VI School District, 140 F.3d 1153, 1157 (8th Cir.1998); Metropolitan" }, { "docid": "4448361", "title": "", "text": "do not believe that it was responsible for an incorrect verdict, resulting in substantial injustice. The jury found that Exide was liable for negligence, breach of warranty, fraud and misrepresentation, a scheme to defraud, false advertising, deceptive trade practices/theft, and breach of contract. It is clear from these unchallenged findings and the facts underlying them that the jury would have awarded punitive damages even if part of the charge was erroneous. IV. Punitive Damages as an Excessive Fine Exide claims that the $3.5 million punitive damages award violates the Excessive Fines Clause of the Eighth Amendment. We hold that Baker v. Dillon, 389 F.2d 57 (5th Cir.1968), controls this issue and thus the issue is not open for appellate review. In Baker, this Circuit’s predecessor reasoned: It is a well-established rule of this Court that the granting or denial of a new trial on the ground of excessive or inadequate damages is a matter of discretion with the trial court, not subject to review except for grave abuse of discretion. The necessary implication of this rule is that there can be no appellate review if the trial court was not given an opportunity to exercise its discretion on a motion for a new trial. Since there was’ no motion for new trial in this case, we have no basis for reviewing the trial court’s exercise of discretion and therefore no basis for reviewing the adequacy of damages. Id. at 58 (citations omitted). Baker’s reasoning applies with equal force to the situation where, as here, a party makes a motion for new trial, but does not raise the ground now asserted on appeal. See R6:162, at 2-3; R6:168, at 4. Furthermore, if the issue were properly preserved for appellate review, we con-elude that Exide is not entitled to prevail on the merits of its argument. Ingraham v. Wright, 525 F.2d 909 (5th Cir.1976) (en banc), aff'd, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) and Jowers v. Nationwide Insurance Co., 832 F.2d 1246 (11th Cir.1988), control our analysis. Although Ingraham addressed the Cruel and Unusual Punishment Clause of the" }, { "docid": "17011272", "title": "", "text": "GARDNER, Circuit Judge. Appellant brought this action against appellee to recover damages for breach of warranty in the sale of pulverized yellow corn. It was alleged in appellant’s amended complaint that there was both an express and an implied warranty, that the pulverized yellow corn was “cool and sweet” and fit for the purpose for which it was purchased, to-wit: chicken feed. The answer admitted the sale but denied the existence of an implied warranty. The case was tried to a jury and resulted in a verdict for $6,000.00 in plaintiff’s favor. The court in due course, on November 25, 1958, entered judgment pursuant to the verdict. Thereafter, on December 5, 1958, defendant moved for judgment notwithstanding the verdict, or in the alternative for a new trial. On this motion defendant charged inter alia: “That the court erroneously instructed the jury that the plaintiff was entitled to rely on an implied warranty of fitness for the particular purpose intended for the corn.” On April 1, 1959, the court denied the motion for judgment notwithstanding the verdict but granted the alternative motion for a new trial. On this appeal plaintiff seeks reversal on substantially the following grounds: (1) That the order granting the new trial is reviewable by this court since it involves a question as to the court’s jurisdiction to enter such order, and (2) that the trial court under the provisions of Rule 59(d) of the Federal Rules of Civil Procedure was without jurisdiction to grant a new trial more than four months after the entry of judgment on grounds supplied of its own initiative. The sole question presented on this appeal is whether or not the court had jurisdiction to enter the order granting a new trial which is appealed from. Generally speaking, an order granting or denying a motion for new trial is interlocutory and not reviewable except for a clear abuse of judicial discretion. Altrichter v. Shell Oil Company, 8 Cir., 263 F.2d 377; Anderson v. Federal Cartridge Corp., 8 Cir., 156 F.2d 681. Where, however, the jurisdiction of the court to enter such order is" }, { "docid": "11831311", "title": "", "text": "is a duty imposed by Kentucky law and plaintiff’s reliance thereon is not a requisite to defendant’s liability for breach. The verdict form allowed the jury to award a judgment against Norden without stating which warranty was breached, consequently we cannot determine under which theory appellant’s liability was imposed. We find these jury instructions were erroneous. Because the instructions were erroneous and, for the reasons set forth below, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion. A. Implied Warranty of Merchantability The implied warranty of merchantability as set forth in the Ky.Rev.Stat. § 355.2-314 provides in pertinent part: “(1) Unless excluded or modified (KRS 355.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind____” To be merchantable, goods must, inter alia, “be fit for the ordinary purposes for which such goods are used.” Ky.Rev.Stat. § 355.-2-314(2)(c). The implied warranty of merchantability arises by operation of law. As such, it does not require reliance as an element of a purchaser’s recovery. Consequently, Nor-den’s reliance argument, so far as it relates to the implied warranty of merchantability, is without merit. We find that Judge Gordon properly instructed the jury on the implied warranty theory. However, we hold that there is insufficient evidence on this record to sustain a finding that Norden breached its implied warrant of merchantability. B. Express Warranty Appellant contends that the jury instructions and verdict form were improper, because neither required a finding of reliance as an element of recovery under the express warranty. We agree. We appreciate the formidable task which confronts a trial judge in charging a jury. We must nevertheless remain loyal to the mandate of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which requires a federal court sitting in diversity to apply the substantive law of the state in which it sits. In the instant case, however, no Kentucky court has construed Ky.Rev.Stat. § 355.2-313. Thus, it is the duty of" }, { "docid": "18444720", "title": "", "text": "is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L. Ed. 1093.” Time, Inc. v. Hill, 385 U. S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456, 415 F.2d at 895. One can no more merely “pick up” one of defendant’s reports, even when he is himself its subject, than he can participate in “freedom of discussion” about its contents. We hold, therefore, that the doctrine of New York Times v. Sullivan does not extend to private subscription credit reports, and that any allegations of defamation concerning such reports are properly subject to the libel laws of the several states. II. The district court directed that its original order of July 16, 1968, granting defendant’s Motion for a New Trial, take effect only in the event that we reverse the February 4, 1970, order granting judgment n. o. v. for the defendant. It is settled in this circuit that motions for new trial are addressed to the sound discretion of the district court and, ordinarily, its disposition of such motion will not be disturbed, Wagner v. Pennsylvania R. Co., 282 F.2d 392 (3 Cir. 1960), except in exceptional cases. Silverii v. Kramer, 314 F.2d 407 (3 Cir. 1963). In Lind v. Schenley Industries, 278 F.2d 79, 90 (3 Cir. 1960), the trial court had entered judgment for defendant and granted a conditional new trial. In reversing, and finding that the district court had abused its discretion in conditionally granting the new trial motion, Judge, then Chief Judge, Biggs stated: “the trial judge in negating the jury’s verdict has, to some extent at least, substituted his judgment of the facts and the credibility of the witnesses for that of the jury”; in this situation, “[i]t then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision” than when the issue is not the weight of the evidence but only trial error. See also Lewin v. Metropolitan Life Insurance Co., 394 F.2d 608 (3 Cir." }, { "docid": "17103219", "title": "", "text": "F.3d 685, 691 (3d Cir.1993) (citations omitted). Crozer moves for judgment as a matter of law on the ground that Valentin failed to carry her burden of establishing by a preponderance of the evidence that Crozer terminated her based on her national origin or retaliated against her because of her EEOC activity. B. Motion for a New Trial A court can grant a new trial “for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Fed. R.Civ.P. 59(a)(1). A new trial may be granted where “the verdict is contrary to the great weight of the evidence.” Roebuck v. Drexel Unin, 852 F.2d 715, 735 (3d Cir.1988). A new trial also is appropriate if the trial court erred on a matter of law. See Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir.1993). The decision to grant or deny a motion for a new trial “is confided almost entirely to the discretion of the district court.” Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir.1992); see Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980). However, the court’s discretion is more limited when granting a new trial because the jury’s verdict is against the weight of the evidence. See Hourston v. Harvlan, Inc., 457 F.2d 1105, 1107 (3d Cir.1972); Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). A new trial “cannot be granted ... merely because the court would have weighed the evidence differently and reached a different conclusion.” Markovich v. Bell Helicopter Textron, Inc., 805 F.Supp. 1231, 1235 (E.D.Pa.) aff'd, 977 F.2d 568 (3d Cir.1992). A court analyzing a motion for a new trial need not view the evidence in the light most favorable to the verdict winner. See Magee v. General Motors Corp., 213 F.2d 899, 900 (3d Cir.1954). If the court finds the verdict is against the great weight of the evidence, or the amount of the verdict is" }, { "docid": "21050038", "title": "", "text": "S.Ct. 795, 102 L.Ed.2d 787 (1989); Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921-22 (3d Cir.1986); Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir.1963) (“It is well settled that the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge and his action thereon is not reviewable upon appeal, save in the most exceptional cases”). Particular deference is appropriate in the present case because the decision to grant a new trial rested on an evidentiary ruling that was itself entrusted to the trial court’s discretion. Indeed, a trial judge’s decision to admit or exclude evidence under Fed.R.Evid. 403 may not be reversed unless it is “arbitrary and irrational.” United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Long, 574 F.2d 761, 767 (3d Cir.) (“If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal”), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). Applying these deferential standards of review, we sustain the trial judge’s decision to grant a new trial in this case. The trial court’s conclusion that the testimony at issue should have been excluded under Fed.R.Evid. 403 was unquestionably neither arbitrary nor irrational but reflected an appropriate assessment and weighing of the prescribed considerations. Relevant evidence may be excluded under Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jurors.” Here, the trial judge had solid grounds for concluding that the out-of-court statements at issue had little if any relevance or probative value and that they created a substantial danger of “unfair prejudice,” “confusion of the issues,” and “misleading" }, { "docid": "4943894", "title": "", "text": "There is a difference in the function of a judge when he is ruling on a motion for a directed verdict or a judgment n. o. v. and when he passes on a motion for a new trial. In the former instance, it is his duty to accept the plaintiff’s version as true for the purposes of the motion, notwithstanding the existence of strong testimony to the contrary; the judge is not concerned with the weight of the evidence. On the motion for new trial, however, he has wider, though not unlimited, latitude and he may set the verdict aside where it is against the weight of the-evidence, or to prevent injustice. (Emphasis in Fireman’s Fund) Defendant Exxon asserted two grounds for the granting of a new trial: (1) that the verdict of liability was against the weight of the evidence, and (2) that the verdict of damages for pain and suffering was excessive. In Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir. 1960 [en banc]) (Biggs, C. J.),cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960), the Court distinguished between a motion for a new trial based upon a claim that the verdict was against the weight of the evidence, and such a motion based on claimed errors or other defects during the trial, “which resulted or which may have resulted in the jury receiving a distorted, incorrect, or an incomplete view of the operative facts, or ... creat[ed] a condition whereby the giving of a just verdict was rendered difficult or impossible.” 278 F.2d at 90. It is clearly the former which is at issue here. The Court-continued: But where no undesirable or pernicious element has occurred or been introduced into the trial and the trial judge nonetheless grants a new trial on the ground that the verdict was against the weight of the evidence, the trial judge in negating the jury’s verdict has, to some extent at least, substituted his judgment of the facts and the credibility of the witnesses for that of the jury. Such an action effects a denigration of" }, { "docid": "22081086", "title": "", "text": "argument that paragraph 7 meant nothing if it did not limit liability for negligence under these circumstances. The provision could be an attempt to limit damages which occurred in excess of the purchase price as a result of a breach of contract. See, Willard Van Dyke Productions, Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693 (1963); Becker Pretzel Bakeries, Inc. v. Universal Oven Co., 279 F.Supp. 893 (D.Md.1968); Pipe Welding Supply Co. v. Gas Atmospheres, Inc., 201 F.Supp. 191 (N.D.Ohio, 1961); Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578, 271 P.2d 122 (1954). Whether it was effective for this purpose is a question we do not have to reach since the jury specifically found negligence in this case. In view of our holding which finds evidence to support that portion of the jury’s verdict finding Carbide negligent and in view of our position that Carbide did not exculpate itself from liability for negligence on this record, it is unnecessary to consider Carbide’s arguments attacking the jury’s findings relating to a breach of the express and implied warranties of the contract. Carbide appeals the denial of its motion for a new trial as well as the denial of its motion for judgment n. o. v. A motion for a new trial on the ground that the verdict is against the weight of evidence is particularly within the discretion of the trial judge and only in very clear cases will an appellate court say that he abused his discretion. Silverlii v. Kramer, 314 F.2d 407 (3d Cir. 1963); Mihalchak v. American Dredging Co., 266 F.2d 875, 876 (3d Cir.1959) cert. denied, 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 157. In addition to its claim that the weight of the evidence was in its favor, Carbide contends that inconsistencies in answers to the interrogatories and the denial of its request for special factual verdict forms, compels the Court to grant its motion for a new trial on liability. We disagree. Although we do not necessarily approve of the form of interrogatories used and recognize" }, { "docid": "11831310", "title": "", "text": "Overstreet’s farm aborted their foals during the spring of 1974. Dr. Overstreet instituted this breach of warranty action under Ky.Rev.Stat. §§ 355.2-313, 2-314 against Norden to recover losses resulting from the aborted foals. At trial, Dr. Overstreet alleged that Norden breached expressed and implied warranties which Norden made concerning its rhinomune vaccine. A jury returned a verdict of $40,500.00 in favor of Dr. Over-street. Norden made motions for judgment n.o.v. and, in the alternative, for a new trial. Both motions were denied. Defendant Norden perfected this appeal. Norden assigns as error jury instructions on the issue of its liability under Ky.Rev.Stat. §§ 355.2-313, 2-314. Norden argues that the trial court should have instructed the jury that in order to recover, plaintiff must establish that he relied on any warranty which Norden made. Appellant’s challenge is well founded, but imprecise. As Norden contends, reliance is an element of a breach of an expressed warranty action under Kentucky law, and the jury should have been instructed accordingly. However, the implied warranty of merchantability Ky.Rev. Stat. § 355.2-314 is a duty imposed by Kentucky law and plaintiff’s reliance thereon is not a requisite to defendant’s liability for breach. The verdict form allowed the jury to award a judgment against Norden without stating which warranty was breached, consequently we cannot determine under which theory appellant’s liability was imposed. We find these jury instructions were erroneous. Because the instructions were erroneous and, for the reasons set forth below, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion. A. Implied Warranty of Merchantability The implied warranty of merchantability as set forth in the Ky.Rev.Stat. § 355.2-314 provides in pertinent part: “(1) Unless excluded or modified (KRS 355.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind____” To be merchantable, goods must, inter alia, “be fit for the ordinary purposes for which such goods are used.” Ky.Rev.Stat. § 355.-2-314(2)(c). The implied warranty of merchantability arises by operation of law. As such, it" }, { "docid": "1836598", "title": "", "text": "MATTHES, Circuit Judge. This so-called cigarette-cancer case originated in the Circuit Court of Jackson County, Missouri, on November 23, 1954, was removed to the United States District Court for the Western District of Missouri on the ground of diversity of citizenship and the requisite amount in controversy, and was tried in that court before a jury in June and July, 1962. From a judgment entered pursuant to a verdict for defendant-appellee (hereinafter referred to as defendant), plain tiff-appellant (hereinafter referred to as plaintiff) has perfected this appeal. Count I of the complaint upon which the action was tried was for breach of an implied warranty; Count II sounded in negligence; and Count III for fraud and deceit by false advertising. Defendant’s motion for summary judgment on Count III was sustained before trial, thus eliminating that count from jury consideration. In addition to answers which essentially amounted to a general denial, defendant also interposed as defenses: (1) the statute of limitations, (2) assumption of risk, and (3) contributory negligence. (1) was determined adversely to defendant in a pre-trial conference, and (2) and (3) were not submitted to the jury and are not in issue on appeal. The implied warranty and negligence counts were submitted, and by general verdict, both were resolved adversely to plaintiff. On this appeal plaintiff has abandoned the fraud and deceit issue, and ■ — except as to the court’s refusal to admit certain evidence, seeks no review of the disposition of the negligence count. The nature of the points relied upon as grounds for reversal does not necessitate a detailed recitation of the evidence. For purposes of this opinion, the following factual résumé will suffice. Plaintiff was born on November 20, 1899, and began smoking cigarettes when he was 28 or 29 years old. He became a confirmed smoker in 1934, and from that time until his cancer operation in 1952, he smoked Philip Morris brand cigarettes almost exclusively. Plaintiff increased his consumption of smoking cigarettes from the early 1930s and within four or five years was smoking two packages a day. Again, he increased to the" }, { "docid": "1386100", "title": "", "text": "(R134-117). Even uncontra-dicted expert opinion testimony is not conclusive, and the jury has every right not to accept it. Remington Arms Co., Inc. v. Wilkins, 387 F.2d 48, 54 (5th Cir.1967). The jury here apparently found Gregg’s testimony credible. Our review of the record concerning the valuation indicates that Gregg presented substantial evidence from which reasonable jurors could conclude that the companies had a value of $12.5 million at closing. Gregg testified that he independently valued his companies at $10 million based on an earnings ratio, and he detailed the additional $2.5 million in cash and capital that he put into the businesses. It was wholly within the jury’s function to credit Gregg’s valuation. Boeing, 411 F.2d at 375. We therefore, refuse to set aside the jury’s award of damages on Gregg’s fraud claim. II. THE BREACH OF WARRANTY COUNTERCLAIM USI next argues on appeal that the trial judge committed prejudicial error in charging the jury that reliance was an essential element of USI’s breach of warranty counterclaim, and therefore, the district court should have granted its motion for a new trial. USI contends that its contract with Gregg to purchase his companies was explicitly predicated upon the accuracy of Gregg’s representations and warranties, particularly those regarding the financial condition of his businesses. USI claims that it produced evidence at trial that Gregg breached the contract and its warranties by materially misrepresenting the status of the C-38 dredging job in progress as of the closing. It maintains that Gregg failed to accurately state the financial condition of the companies because he did not follow generally accepted accounting principles in his bookkeeping, and because he failed to record a major loss and provide for adequate company reserves which resulted in a material overstatement of the companies’ net income. At the outset, we recognize that we are reviewing a case brought before the United States District Court for the Middle District of Florida on the basis of diversity jurisdiction. The parties cite to New York law in arguing this issue. Accordingly, in asserting that the jury charge on breach of warranty was" }, { "docid": "1386107", "title": "", "text": "to the trial judge when formulating the jury instructions. Most of the cases cited by Gregg were available to the district court and represented the existing law of New York on the reliance issue in warranty cases. Even a reading of Ainger shows that the Second Circuit, in affirming the district court on other grounds, refused to join the ongoing debate in the New York courts over the reliance issue. Ainger, 632 F.2d at 1026. The Second Circuit stated that the district court’s discussion of New York law on reliance was dicta since the trial court held that reliance was established in the case. Id. at 1026 n. 1. The circuit court noted that “[b]ecause there was reliance in this case, we will not speculate how the New York courts would decide a case in which there was none.” Id. We also refuse to speculate here, especially when ample law supports the trial court’s instruction that reliance must be proven in a breach of warranty case. The district court correctly instructed the jury as to the law on breach of warranty based on what was represented to it. “When the instructions, taken together, properly express the law applicable to the case, there is no error even though an isolated clause may be ... subject to criticism.” Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.1982). We do not doubt that the jury was properly guided in its deliberations by the court’s charge. See Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir. July 1981). It considered and weighed the evidence regarding USI’s breach of warranty counterclaim and returned a verdict in favor of Gregg. Since we find no error in the trial judge’s jury instruction, we hold that the district court acted well within its discretion in denying USI’s motion for a new trial. III. THE TORTIOUS INTERFERENCE CLAIM USI next argues on appeal that the trial court erred in failing to direct a verdict for it or grant its motions for judgment n.o.v. and new trial on Gregg’s claim of tortious interference with his business relationships." }, { "docid": "8375188", "title": "", "text": "movement. The testimony of experts supported Matthews’ claim that Ford’s defective design and assembly and Kimnach’s improper repairs allowed the transmission to reverse unexpectedly. The trial judge submitted the case to the jury on theories of negligence and breach of warranty, and the jury returned a general verdict in favor of Matthews against both Ford and Kim-nach. Many of the assignments of error pertain to familiar principles of law and to questions which were solely the province of the jury. On these issues, we find extended discussion unnecessary. Examination of the record and consideration of the briefs and oral argument disclose no reversible error in the empaneling and instruction of the jury, the admission and exclusion of evidence, or the denial of motions for judgment. Further, the evidence of negligence amply supports the jury’s verdict against both defendants in tort. Cf. Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir. 1951). However, because the jury returned a general verdict, Ford and Kim- nach argue that error in submitting Matthews’ claim of breach of warranty to the jury requires reversal. They rely on clauses in the contract of sale, which they assert are sufficient to disclaim liability. Since no Virginia case applying the sections of the Uniform Commercial Code that pertain to the contractual liability of a manufacturer and a dealer has been called to our attention, we will briefly state the reasons for our affirmance on this issue. The purchase order for Matthews’ new car contained an express warranty. In lieu of implied warranties, Ford warranted the car to be free from defects in material and workmanship for a period of twenty-four months or until it had been driven 24,000 miles, but the only remedy mentioned was replacement of defective parts free of charge. Matthews urges us to hold that Ford’s exclusion of the implied warranties of merchantability and fitness is either ineffective or unconscionable under §§ 2-316 or 2-302 of the Uniform Commercial Code. However, we need not consider this approach to the problem because it is clear that Ford is liable under its express warranty. The evidence" }, { "docid": "23556311", "title": "", "text": "as a whole, and in the light most favorable to plaintiff’s case, we cannot say as a matter of law that her case is “critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.” Neville Chemical Co., supra, 422 F.2d at 1211-12. Much of plaintiff’s evidence is conflicting. Some of her witnesses were confused. But enough evidence was introduced to support plaintiff’s causation claim, provided the jury chose to believe that evidence. The credibility of plaintiff’s witnesses was for the jury. “It is not necessary . that every fact or circumstance point unerringly to liability;' it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138, 153 A.2d 477, 480 (1959). It was therefore not error to deny Ford’s j. n.o.v. motion. III. FORD’S MOTION FOR A NEW TRIAL AS TO ALL ISSUES Ford seeks a reversal of the district court’s denial of its motion for a new trial on the ground, inter alia, that it was inconsistent with the sound exercise of discretion for the trial judge to limit the second trial below to the issue of damages. Under Fed.R.Civ.Pro. 59(a) the trial court, in its sound discretion, may limit the grant of a new trial to only a portion of those issues litigated in the original proceeding, including the issue of damages only. 6A Moore’s Federal Practice 159.06 at 59-81 (1973). The trial court’s decision to grant a limited new trial is reviewable by this court when that decision comes before us, as it does in this case, as part of an appeal from ' a final judgment. Springfield Crusher, Inc. v. Transcontinental Ins. Co., 372 F.2d 125 (3d Cir. 1967). The standard of review of an order under Fed.R.Civ.Pro. 59(a) “is a matter of federal procedure and is, in no wise, subject to state practice.” Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir. 1963). Accord, 11 C. Wright & A. Milier, Federal Practice & Procedure § 2802 (1973). And the standard" }, { "docid": "22081087", "title": "", "text": "relating to a breach of the express and implied warranties of the contract. Carbide appeals the denial of its motion for a new trial as well as the denial of its motion for judgment n. o. v. A motion for a new trial on the ground that the verdict is against the weight of evidence is particularly within the discretion of the trial judge and only in very clear cases will an appellate court say that he abused his discretion. Silverlii v. Kramer, 314 F.2d 407 (3d Cir. 1963); Mihalchak v. American Dredging Co., 266 F.2d 875, 876 (3d Cir.1959) cert. denied, 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 157. In addition to its claim that the weight of the evidence was in its favor, Carbide contends that inconsistencies in answers to the interrogatories and the denial of its request for special factual verdict forms, compels the Court to grant its motion for a new trial on liability. We disagree. Although we do not necessarily approve of the form of interrogatories used and recognize there are inconsistencies in the answers, in light of our decision which in effect upholds the jury’s finding of negligence, we do not consider them prejudicial. The inconsistencies as well as Carbide’s objection to the charge of the trial judge in the liability trial pertain primarily to the question of breach of warranty and do not therefore affect the final decision on liability. Accordingly, we uphold the trial court’s decision in refusing to grant a new trial on the liability issue. IV This, then, brings us to a consideration of the various items of damage awarded by the jury. They are basically four in number: First, damages to recompense Neville for the payments it made to its customers, $696,534. Second, the interest on the first item $128,-000. Third, damages to cover the costs of scientific research in discovering the cause of the odor and cost of settlement expense for item 1, $240,000. And fourth, damages for the loss of future profits or good will, $1,087,000. Carbide’s major attack on the jury’s damage verdict focuses on" }, { "docid": "11134564", "title": "", "text": "AMENDED OPINION OF THE COURT PER CURIAM. This matter was heretofore before the Court on an appeal from a judgment in favor of the defendant in an action for personal injury based on negligence and breach of warranty. 350 F.2d 479, cert. den. 382 U.S. 987, 86 S.Ct. 549, 15 L.Ed. 2d 475. The appeal was from that portion of the judgment which was predicated upon the jury’s determination on the issues relating to the alleged breach of warranty. The judgment was reversed and the action was remanded to the court below “with the direction that a new trial be had.” The matter is now before the court on a “Motion for Clarification of Mandate” filed by the appellant. Although the mandate does not require clarification, the earlier opinion of this court and the mandate must be amended. Pursuant to Fed.Rules' Civ.Proc., rule 49(a), 28 U.S.C.A., the issues were submitted to the jury on special interrogatories in response to which the jury found: (1) the smoking of Chesterfield cigarettes by the plaintiff was “the cause, or one of the causes,” of cancer; (2) the defendant was not chargeable with negligence; (3) the defendant made no “express warranties upon which the plaintiff relied and by which he was induced to purchase” the cigarettes; and (4) the plaintiff assumed the risk of injury by his smoking the cigarettes. Since the issue of causation was decided by the jury in the earlier trial, the plaintiff may not be required to relitigate the same issue when the action is retried. Green v. American Tobacco Co., 325 F.2d 673, 678 (5th Cir. 1963), cert. den. 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306. However, the issues as to liability and damages must be relitigated. The last paragraph of our filed opinion, page 11, will be amended to read as follows: “The judgment of the court below will be reversed and the action will be remanded with the direction that a new trial be had limited to the issues of liability, (except as to the finding that the cause, or one of the causes, of" }, { "docid": "2998252", "title": "", "text": "him as “owner of a Buick automobile which [defendant] had manufactured.” Magee v. General Motors Corp., Maris, J., 213 F.2d 899, 900 (3rd Cir.1954). The several opinions were the result of the lower court’s uncertainty as to the scope of its review on motion for new trial, since the case had been tried by another judge whose death had intervened between judgment on the verdict and argument on the motion. In the course’of its discussions, however, the United States District Court for the Western District of Pennsylvania recognized the liability to a third person in the first opinion, and emphasized the interchangeability of the remedies in the second opinion in the following language: “ * * * a manufacturer is under a duty to make the article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made * * * and he is liable for an injury to a third person resulting from a failure to perform this duty, if such injuries could reasonably be anticipated, although there is no contract or privity between the parties. * * *” Magee v. General Motors Corp., 117 F.Supp. 101, 102 (W.D.Pa.1953). (Emphasis supplied.) “A recapitulation of all the credible evidence establishes the right of plaintiff to recover either upon the theory of breach of implied warranty of fitness for purpose and merchantability, or upon the basis of common law negligence. ****** “An appropriate Order is entered.” Magee v. General Motors Corp., 124 F.Supp. 606, 607 (W.D. Pa.1954). A year later, another products liability case was argued before the United States District Court for the Western District of Pennsylvania, in an action against a cigarette manufacturer for damages allegedly resulting from smoking cigarettes. Pritchard v. Liggett & Myers Tobacco Company, 134 F.Supp. 829, 833 (W. D.Pa.1955). It was there said: “Defendant apparently does not dispute the general proposition that an action for personal injuries to an ultimate consumer lies against a manufacturer for negligence in the manufacturing of the product, Magee v. General Motors Corp., D.C.W. . D.Pa.1954, 124 F.Supp. 606, affirmed" }, { "docid": "23556312", "title": "", "text": "the ground, inter alia, that it was inconsistent with the sound exercise of discretion for the trial judge to limit the second trial below to the issue of damages. Under Fed.R.Civ.Pro. 59(a) the trial court, in its sound discretion, may limit the grant of a new trial to only a portion of those issues litigated in the original proceeding, including the issue of damages only. 6A Moore’s Federal Practice 159.06 at 59-81 (1973). The trial court’s decision to grant a limited new trial is reviewable by this court when that decision comes before us, as it does in this case, as part of an appeal from ' a final judgment. Springfield Crusher, Inc. v. Transcontinental Ins. Co., 372 F.2d 125 (3d Cir. 1967). The standard of review of an order under Fed.R.Civ.Pro. 59(a) “is a matter of federal procedure and is, in no wise, subject to state practice.” Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir. 1963). Accord, 11 C. Wright & A. Milier, Federal Practice & Procedure § 2802 (1973). And the standard we apply on review is whether, viewing the circumstances as a whole, it was consistent with the sound exercise of discretion for the trial judge to limit the new trial to the issue of damages. Though the discretion of the trial judge is broad in such cases, it is not boundless. We recognize, as we must, that a motion for a new trial ... is addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable in the absence of a showing of exceptional circumstances such as an abuse of discretion. . . . There is an abuse of discretion within the meaning of the rule, when the action of the trial judge is clearly contrary to reason and not justified by the evidence. Springfield Crusher, Inc. v. Transcontinental Insurance Co., 372 F.2d 125,126 (3d Cir. 1967) (citations omitted). Ford argues that the issues of liability and damages were so intertwined that it was improper to allow the second jury to try the damage issue only. The circumstances under which" } ]

[ { "docid": "22671611", "title": "", "text": "petitioners’ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. Supra, at 142. Jones v. United States, 362 U. S. 257 (1960) and Katz v. United States, 389 U. S. 347 (1967), involved significantly different factual circumstances. Jones not only had permission to use the apartment of his friend, but had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it. Likewise in Katz, the defendant occupied the telephone booth, shut the door behind him to exclude all others and paid the toll, which “entitled [him] to assume that the words he utter [ed] into the mouthpiece [would] not be broadcast to the world.” Id., at 352. Katz and Jones could legitimately expect privacy in the areas which were the subject of the search and seizure each sought to contest. No such showing was made by these petitioners with respect to those portions of the automobile which were searched and from which incriminating evidence was seized. Ill The Illinois courts were therefore correct in concluding that it was unnecessary to decide whether the search of the car might have violated the rights secured to someone else by the Fourth and Fourteenth Amendments to the United States Constitution. Since it did not violate any rights of these petitioners, their judgment of conviction is Affirmed. Petitioners claim that they were never asked whether they owned the rifle or shells seized during the search and, citing Combs v. United States, 408 U. S. 224 (1972), argue that if the Court determines that a property interest in the items" } ]

[ { "docid": "556827", "title": "", "text": "key was to give them access to the boat at any time. Beahm testified that he recalled that Van Nuys left a box of records on the boat six months or so before the search, and that he, Beahm, assumed that Van Nuys was using the boat as an executive officer of Coast Finance, to do work there for that company. Beahm also testified that he thought O’Neil told the agents of the existence of the boat at the time of the arrest at O’Neil’s residence, and this concerned him because he thought the agents would tear it up in a search. The documents seized in the boat search have been put into evidence as Exhibit 22. None of those records suggests, on its face, that it is the sole property of any of the defendants now before the court. To challenge a search and seizure on fourth amendment grounds, a defendant must prove that he had a reasonable expectation of privacy in the place searched or the items seized. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 683 (1980); United States v. Payner, 447 U.S. 727, 731-32, 100 S.Ct. 2439, 2443-44, 65 L.Ed.2d 468 (1979). A “defendant’s rights are violated only when the challenged conduct invaded his legitimate expectations of privacy rather that of a third party’s.” United States v. Payner, 447 U.S. at 731, 100 S.Ct. at 2444. The Supreme Court has stated that “[L]egitimization of expectations of privacy by law must have a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144, 99 S.Ct. 421, 431, 58 L.Ed.2d 387 (1978). In assessing the defendants’ expectations of privacy, the court looks to the totality of the circumstances. See, e.g., Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561; United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981). In support of his argument that he has the right to challenge the search of the Andalon, Van Nuys cites United" }, { "docid": "23169703", "title": "", "text": "be invalid by District Judge Aldon J. Anderson on a motion to suppress filed in criminal proceedings against the principals of the clearinghouses. Appellants argue that use of the illegally seized evidence violates the due process rights guaranteed them by the fifth and tenth amendments. They do not, however, explain the impact of such an argument on this case. We hold that appellants’ argument is without merit and that, in any event, appellants have no standing to raise such a claim. The evidence in question was not improperly seized. Since appellants’ brief was filed, the Tenth Circuit Court of Appeals has reversed Judge Anderson’s holding and has held that the fourth amendment rights of the criminal* defendants in that proceeding were not violated. United States v. Cardall, 773 F.2d 1128 (10th Cir.1985). Given the Tenth Circuit’s holding, we find no merit in appellants’ claim of fourth amendment violations. Had appellants been able to demonstrate that a fourth amendment violation had occurred, their argument would not be well taken because they have not demonstrated the “expectation of privacy” necessary for standing to challenge the legality of the searches involved. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court held that in order to challenge the legality of a search or seizure, a person must show that he had a “legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. See also, United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980). There has been no showing, and we believe appellants would be hard pressed to demonstrate, that they had any expectation of privacy in either the business offices of the clearinghouses or in the business records seized. See Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 90, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). Because the evidence at issue was seized legally and because appellants have no standing to challenge the legality of the searches, we hold" }, { "docid": "1643913", "title": "", "text": "marijuana at the warehouse. In United States v. Padilla, — U.S. -, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), reversing, 960 F.2d 854 (9th Cir.1992), however, the Supreme Court flatly rejected our coconspirator exception as inconsistent with Alderman and Rakas. As the Court stated, “[ejxpectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims. Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds nor detracts from them.” Id., — U.S. at -, 113 S.Ct. at 1939. Thus, Lingenfelter and Marolf must demonstrate that their own expectations of privacy or property interests were violated by the challenged police conduct. Neither Lingenfelter nor Marolf has made a sufficient showing that his legitimate or reasonable expectations of privacy were violated by the search of the warehouse. Lingenfelter has also failed to make a sufficient showing with respect to the Asmara. The district court therefore did not err in denying their standing claims. Ill Morgan contends that the district court erred in refusing to suppress evidence seized as a result of the warehouse search. The denial of a motion to suppress is reviewed de novo, although the underlying factual findings must be accepted unless they are clearly erroneous. United States v. Nance, 962 F.2d 860, 862 (9th Cir.1992). A. Morgan first argues that the canine sniff of the warehouse door was an illegal warrantless search, the results of which should not have been used to establish probable cause. Whether police conduct amounts to a “search” within the meaning of the Fourth Amendment is a mixed question of law and fact that is reviewed de novo. United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir.1986). The first clause of the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. A search within the meaning of this clause “occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct." }, { "docid": "14061378", "title": "", "text": "Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Senior Judge CHAPMAN joined. OPINION WILKINSON, Circuit Judge: Mohamed Basher Al-Talib and Hector R. Munoz were convicted of conspiracy to possess and distribute marijuana, as well as attempted possession of marijuana with intent to distribute. Appellants complain that the government improperly “manufactured” venue when they were arrested following a sting operation in Virginia. They also argue that the government violated the Posse Com-itatus Act, 18 U.S.C. § 1385, in setting up this sting. Further, Basher and Munoz make a number of individual challenges to the trial court’s rulings on suppression of evidence and its factual findings underlying their respective sentences. Because we find no error in the proceedings below, we affirm the appellants’ convictions and sentences. I. A. On February 1, 1994, Ronnie Tankersley was stopped by the Nebraska State Patrol for a traffic violation on 1-80 in Hall County, Nebraska. After Tankersley signed a search consent form, the officers discovered eight bales of marijuana weighing about ninety kilograms in the trunk. The car, a 1989 Oldsmobile, belonged to Tom Minich, who had given Tankersley written permission to drive it. Tankersley was arrested and agreed to cooperate with the authorities. Based on information obtained from Tank-ersley, both state and federal authorities began to investigate a suspected drug ring involving Hector Munoz, Higinio Avilez, Mi-nich, James Lull, Inocento Molina, Michael Pisante, and several others. On February 2, acting on Tankersley’s information, U.S. Drug Enforcement Administration (“DEA”) agents raided a warehouse in Tucson, Arizona and seized 25 bales of marijuana weigh ing about 800 pounds, as well as various documents and other supplies. Tankersley also told the authorities that when he was stopped, he had been on his way to Washington, D.C. to deliver marijuana to one of the conspiracy’s buyers. The DEA decided to set up a controlled delivery of the marijuana. Agents arranged to have the Oldsmobile and the marijuana airlifted to the D.C. area by the United States Transportation Command. On February 4, a C-130 transport manned by an Air Force crew flew the car" }, { "docid": "14061395", "title": "", "text": "S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). Munoz contends that he had just such a legitimate expectation of privacy in the Oldsmobile because he was Tankersley’s supervisor and thus “maintained considerable control” over the vehicle. This “coconspirator exception” to the rule of standing was squarely rejected in United States v. Padilla, — U.S. -, -, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993). No expectation of privacy is created simply because one has “a supervisory role in the conspiracy or joint control over the place or property involved in the search or seizure.” Id. at -, 113 S.Ct. at 1937. Munoz therefore had no standing to contest this search. B. Next, we turn to Basher’s claim that his arrest was improper. A warrantless arrest, like the one in this case, requires that the arresting officers possess probable cause to believe that the person has committed or is committing a felony offense. United States v. Watson, 423 U.S. 411, 422, 96 S.Ct. 820, 827, 46 L.Ed.2d 598 (1976). If probable cause was lacking, as Basher argues, the evidence seized as a result of his arrest should have been suppressed. To determine whether probable cause existed, courts look to the totality of the circumstances known to the officers at the time of the arrest. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). Here, the DEA had probable cause to arrest Basher. For two days, DEA agents watched Basher travel around Virginia with Munoz and Avilez in an obvious attempt to obtain the marijuana, going to Tankersley’s motel, the hospital, and the car depot. Basher was serving as the driver throughout this period. Agents also observed him engage in what they perceived to be counter-surveillance driving tactics. For example, Basher made u-turns to check for tails, and drove around to the back of Redman’s in an attempt to keep a low profile. An officer could have reasonably inferred that Basher was engaged in committing a felony. Probable cause has often been upheld in similar circumstances. See, e.g., United States v. Clark, 754 F.2d 789, 791-92 (8th" }, { "docid": "556828", "title": "", "text": "98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 683 (1980); United States v. Payner, 447 U.S. 727, 731-32, 100 S.Ct. 2439, 2443-44, 65 L.Ed.2d 468 (1979). A “defendant’s rights are violated only when the challenged conduct invaded his legitimate expectations of privacy rather that of a third party’s.” United States v. Payner, 447 U.S. at 731, 100 S.Ct. at 2444. The Supreme Court has stated that “[L]egitimization of expectations of privacy by law must have a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144, 99 S.Ct. 421, 431, 58 L.Ed.2d 387 (1978). In assessing the defendants’ expectations of privacy, the court looks to the totality of the circumstances. See, e.g., Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561; United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981). In support of his argument that he has the right to challenge the search of the Andalon, Van Nuys cites United States v. Robertson, 606 F.2d 853 (9th Cir.1979), and United States v. Salvador, 740 F.2d 752 (9th Cir.1984). In Robertson, the court found that the defendant [Robertson] had a reasonable expectation of privacy in his cousin’s [Redick] home because “Both parties apparently believed that Robertson has standing to challenge the search of Re-dick’s home. Although he did not have a proprietary interest in the house, he did have such an interest in the items seized in the search: his clothing and his person. Robertson was also an overnight guest in the Redick home. He had already spent at least one night there and had stored his personal belongings in the room in which he was found.” Robertson, 606 F.2d at 858, f.n. 2. Van Nuys, however, does not have such a possessory interest in the documents seized. They include statements for securities trading addressed to Fred Beahm; tax returns for partnership proper ties, in each of which Fred Beahm held an interest; Fred Beahm’s flight log; can-celled checks and other receipts of Fred Beahm’s that" }, { "docid": "1643912", "title": "", "text": "of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. at 425. Under this rule, “coconspirators and codefendants have been accorded no special standing.” Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969). Both Lingenfelter and Marolf ground their standing argument in the Ninth Circuit’s “coconspirator exception” to the general Rakas rule that a defendant cannot contest the violation of another person’s Fourth Amendment rights. See United States v. Taketa, 923 F.2d 665, 671 (9th Cir.1991). This exception provides that a defendant may challenge a search of a third party’s property if he or she had a reasonable expectation of privacy in the place searched based on a formal arrangement indicating joint control or supervision. See id. Relying on this exception, Lingenfelter and Marolf contend that they were parties to a formalized agreement to import marijuana from Thailand to California aboard the Asmara and to store that marijuana at the warehouse. In United States v. Padilla, — U.S. -, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), reversing, 960 F.2d 854 (9th Cir.1992), however, the Supreme Court flatly rejected our coconspirator exception as inconsistent with Alderman and Rakas. As the Court stated, “[ejxpectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims. Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds nor detracts from them.” Id., — U.S. at -, 113 S.Ct. at 1939. Thus, Lingenfelter and Marolf must demonstrate that their own expectations of privacy or property interests were violated by the challenged police conduct. Neither Lingenfelter nor Marolf has made a sufficient showing that his legitimate or reasonable expectations of privacy were violated by the search of the warehouse. Lingenfelter has also failed to make a sufficient showing with respect to the Asmara. The district court therefore did not err in denying their standing claims. Ill Morgan contends that the district court erred in refusing to suppress" }, { "docid": "14061396", "title": "", "text": "the evidence seized as a result of his arrest should have been suppressed. To determine whether probable cause existed, courts look to the totality of the circumstances known to the officers at the time of the arrest. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). Here, the DEA had probable cause to arrest Basher. For two days, DEA agents watched Basher travel around Virginia with Munoz and Avilez in an obvious attempt to obtain the marijuana, going to Tankersley’s motel, the hospital, and the car depot. Basher was serving as the driver throughout this period. Agents also observed him engage in what they perceived to be counter-surveillance driving tactics. For example, Basher made u-turns to check for tails, and drove around to the back of Redman’s in an attempt to keep a low profile. An officer could have reasonably inferred that Basher was engaged in committing a felony. Probable cause has often been upheld in similar circumstances. See, e.g., United States v. Clark, 754 F.2d 789, 791-92 (8th Cir.1985). The district court properly denied Basher’s motion to suppress. C. Basher also challenges the sufficiency of the evidence used to convict him. He contends that the evidence shows only that he knew Munoz and Avilez, not that he was involved in the conspiracy. The evidence could just as easily have been interpreted, Basher argues, to indicate that he was merely squiring his friends around the Washington, D.C. area while they were in town. We disagree. The evidence must be assessed in the light most favorable to the government, and the verdict will stand unless no rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. United States ¶. Banks, 10 F.3d 1044, 1051 (4th Cir.1993); United States v. Jones, 735 F.2d 785, 790 (4th Cir.), cert. denied, 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). There is ample evidence here from which the trial court could have rationally determined that Basher was a participant in this conspiracy. Aside from the fact that Basher aided Munoz" }, { "docid": "3196881", "title": "", "text": "the stop is irrelevant, so long as the objective circumstances justify the stop.”). In other words, although Whren stands for the proposition that a pretextual seizure based on the illegitimate subjective intentions of an officer may be permissible, it does not alter the fact that the pretext itself must be a constitutionally sufficient basis for the seizure and the facts supporting it must be known at the time it is conducted. Whren, 517 U.S. at 813, 116 S.Ct. 1769. In this case, as in Luckett, it is undisputed that Appellants were not aware of the fact that Moreno was subject to an outstanding arrest warrant at the time they arrested him. Therefore, there are no facts from which we can conclude that the suspicionless arrest and search in this case were objectively justifiable. Appellants’ reliance on cases dealing with one’s “standing” to bring a Fourth Amendment challenge, Minnesota v. Carter, 525 U.S. 83,119 S.Ct. 469, 142 L.Ed.2d 373 (1998), United States v. Padilla, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), is likewise unavailing. In each of those cases, there was a question as to whether the person challenging the search had standing because he or she lacked a legitimate expectation of privacy in the place searched or the thing seized. See Carter, 525 U.S. at 91, 119 S.Ct. 469 (holding that respondent lacked standing to bring Fourth Amendment challenge based on police search of another person’s home because respondent had no expectation of privacy therein); Padilla, 508 U.S. at 81-82, 113 S.Ct. 1936 (remanding for factual determination as to whether petitioner had a legitimate privacy interest in a seized automobile in which he had no ownership interest and was not a passenger); Rawl-ings, 448 U.S. at 105-06, 100 S.Ct. 2556 (holding that petitioner could not challenge the search of another person’s purse because he lacked a reasonable expectation of privacy therein). By contrast, there is no question that Moreno had standing to challenge the search and seizure of his own person. See Terry," }, { "docid": "2667344", "title": "", "text": "the express provisions of the warrant, that the search constituted a general search, was overly intrusive, was made in bad faith, and involved the participation of an unauthorized person. Finally, defendants argue that seizure of Renda’s recorded telephone conversations was not authorized by either the Federal Rules of Criminal Procedure or the fourth amendment. The defendants have argued in the alternative, for a hearing on these motions. 2. Discussion a. Legitimate expectation of privacy The fourth amendment protects people from “unreasonable searches' and seizures” of their “persons, houses, papers and effects,” and provides that warrants to search and seize must be supported by probable cause. U.S. Const, amend. IV. Evidence obtained in violation of the fourth amendment is subject to exclusion at trial. See Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). Exclusion is called for only if the defendant’s own fourth amendment rights are violated. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed. 2d 468 (1980). A defendant’s rights are not violated unless the “challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.” Id. (emphasis in original). The defendant bears the burden of proving such an expectation in the searched or seized property. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Schwimmer asserts that he had a privacy interest in a desk and at certain work areas in First United’s offices. The Government represents that it will not introduce evidence seized from these areas. Accordingly, the Court need not address Schwimmer’s suppression motion. Renda argues that his position as president and sole shareholder of First United conferred on him a legitimate privacy expectation in First United’s premises, as well as in his records and those of First United and its general counsel. The Government argues that Renda’s sole privacy interest was in his personal office at First United. The only premises referred to in the fourth amendment are “houses.” The Supreme Court, however, has rejected a literal reading of this term, and" }, { "docid": "1984226", "title": "", "text": "court’s determination to deny a motion to suppress. See United States v. Gomez, 16 F.3d 254, 256 (8th Cir.1994). A defendant can argue for the suppression of evidence gathered in violation of the Fourth Amendment “only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure.” United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (per curiam). Foster has the burden to show that he had a legitimate expectation of privacy in the car driven by Woods and in the suitcase seized from Payne’s trunk. See Gomez, 16 F.3d at 256. If Foster does not prove a sufficiently close connection to Woods’s car or the suitcase in Payne’s trunk, then he has no standing to argue that the police searched or seized the items illegally. See id. We previously have held that factors relevant to the determination of standing include: ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the ease. Id. (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir.1991)). There is no coconspirator exception to the standing rule. See Padilla, 508 U.S. at 82, 113 S.Ct. at 1939. Foster himself must satisfy the test we laid out in Gomez for each search. Here, Foster did no more than sit in a car outside an auto repair shop in which Woods later drove away. Foster does not assert ownership of the car. Indeed, the car was registered to Nicole Tait. Further, Foster presented no evidence that indicated he had ever possessed the car or had driven it. That Foster sat in the car with Woods for a short time before Woods drove it away, does not convince us that the district court was clearly erroneous in its factual determination that Foster had not established possession or control of" }, { "docid": "14061394", "title": "", "text": "100, 103 (7th Cir.1990) (no suppression of evidence where military assistance did not involve search and seizure). This result comports with the Supreme Court’s command to restrict application of the exclusionary rule to “those areas where its remedial objectives are most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). IV. Basher and Munoz each raise individual claims of error with respect to their arrests and convictions. There is no merit to these claims. A. First, Munoz argues that the district court erred by refusing to allow him to challenge the search of the vehicle Tankersley was driving when stopped in Nebraska. It is well-established that a criminal defendant does not have standing to contest the search of a third party unless he can show he had a reasonable expectation of privacy in the area searched or the property seized. See, e.g., United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443-44, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). Munoz contends that he had just such a legitimate expectation of privacy in the Oldsmobile because he was Tankersley’s supervisor and thus “maintained considerable control” over the vehicle. This “coconspirator exception” to the rule of standing was squarely rejected in United States v. Padilla, — U.S. -, -, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993). No expectation of privacy is created simply because one has “a supervisory role in the conspiracy or joint control over the place or property involved in the search or seizure.” Id. at -, 113 S.Ct. at 1937. Munoz therefore had no standing to contest this search. B. Next, we turn to Basher’s claim that his arrest was improper. A warrantless arrest, like the one in this case, requires that the arresting officers possess probable cause to believe that the person has committed or is committing a felony offense. United States v. Watson, 423 U.S. 411, 422, 96 S.Ct. 820, 827, 46 L.Ed.2d 598 (1976). If probable cause was lacking, as Basher argues," }, { "docid": "14061393", "title": "", "text": "with counter-drug responsibilities at a particular agency. Pub.L. No. 101-510 § 1004, 104 Stat. 1629 (Nov. 5, 1990). Section 1004 was extended through fiscal year 1994 in additional appropriations. Pub.L. No. 103-160 § 1121, 107 Stat. 1753 (Nov. 30, 1993). The Administrator of the DEA made a proper request for military airlift support under § 1004 in a 1993 memorandum, which was approved by the Deputy Assistant Secretary of Defense with responsibility for Drug Enforcement Policy and Support. Given the grant of legislative authority in § 1004, the coordination of the airlift became the internal affair of the executive branch of government. Finally, there is no remedy available to appellants in this context. As a general matter, the exclusionary rule is not a remedy for violations of the PCA. Griley, 814 F.2d at 976; United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979). Where, as here, the military operation at issue involved no seizure of evidence, the exclusionary rule is clearly unavailable. Griley, 814 F.2d at 976. See also Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir.1990) (no suppression of evidence where military assistance did not involve search and seizure). This result comports with the Supreme Court’s command to restrict application of the exclusionary rule to “those areas where its remedial objectives are most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). IV. Basher and Munoz each raise individual claims of error with respect to their arrests and convictions. There is no merit to these claims. A. First, Munoz argues that the district court erred by refusing to allow him to challenge the search of the vehicle Tankersley was driving when stopped in Nebraska. It is well-established that a criminal defendant does not have standing to contest the search of a third party unless he can show he had a reasonable expectation of privacy in the area searched or the property seized. See, e.g., United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443-44, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 133-34, 99" }, { "docid": "14061380", "title": "", "text": "and drugs from Nebraska to Maryland. The ear was then parked at a Days Inn in Alexandria, Virginia, and Tankersley was ensconced at the motel. The DEA began surveillance of the site, waiting for Tank-ersley’s contacts to arrive. On February 6, the DEA monitored several phone calls from Munoz and Avilez to Tankersley. Munoz specifically told Tank-ersley not to go anywhere, but to stay in Virginia. Tankersley then began to experience heart trouble, and was taken to a nearby hospital in Mount Vernon, Virginia. The next day, the DEA had the car towed to Redman’s Fleet Service in Newington, Virginia. Munoz called Tankersley at the hospital, who informed him that the car had been towed. Munoz told Tankersley that he was in Virginia and intended to pick up the car the next day. Munoz appeared at Redman’s on the morning of February 8 to pick up the 1989 Oldsmobile. A DEA agent posing as a clerk told him he needed to bring a license, the vehicle registration, and the owner of the car. Munoz was then observed leaving the area with two other individuals in an 1988 Chevrolet Caprice registered to Mohamed Basher. The following morning, on February 9, DEA agents observed Munoz, Basher, and Avilez together in a 1993 Jeep Cherokee at the Days Inn in Alexandria where Tankersley had been staying. Basher was driving the vehicle. Shortly afterward, the three appeared at the Mount Vernon Hospital. Agents observed Munoz go into the hospital for about ten minutes, and then rejoin Bash-er and Avilez in the car. After leaving the hospital, the three went back to Redman’s and drove around to the rear of the building. Avilez and Basher waited while Munoz went inside with Tankers-ley’s driver’s license and a permission slip. Munoz was arrested as he tried to take possession of the car. Basher and Avilez were also arrested shortly thereafter. A cellular phone and a pager were seized at that time. After Basher’s arrest, DEA agents in D.C. seized his car, which contained $35,000 in cash and smelled strongly of marijuana. A search of Basher’s D.C. residence" }, { "docid": "8666838", "title": "", "text": "Fourth Amendment rights — a question not before us — Rodriguez cannot use the violation of another individual’s rights as the basis for his own Fourth Amendment challenge. See United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (“[A] court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights.”). In order for Rodriguez to establish a claim based on the questions asked to Molina, he must show that the “challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.” Id. Rodriguez has no legitimate expectation of privacy in Molina’s knowledge that Rodriguez was illegally present in the United States, and therefore he cannot contest Molina’s statements. Rodriguez asserts that the government has waived any argument that he lacks the ability to challenge a Fourth Amendment violation of Molina’s rights because the government never raised the argument before the District Court. The fact that Rodriguez cannot demonstrate an expectation of privacy in the statements made by Molina, however, means that he does not have standing to assert such a Fourth Amendment violation. See United States v. Stallings, 28 F.3d 58, 60 (8th Cir.1994) (“In order to have standing to challenge a search or seizure under the Fourth Amendment, the defendant must have a legitimate expectation of privacy in the places or objects searched.”). The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail. See Sierra Club v. Robertson, 28 F.3d 753, 757 n. 4 (8th Cir.1994) (“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”). The Supreme Court has analogized roadside questioning during a traffic stop to a Terry stop, which allows an officer with reasonable suspicion to detain an individual in order to ask “a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317" }, { "docid": "4026613", "title": "", "text": "the vehicle.” United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988), cert. denied, 490 U.S. 1052, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989). Defendant Aulicino has filed a reply brief which claims that a hearing is now necessary because Palazzolo’s affidavit “demonstrates that Olivieri, Palazzolo and Aulicino were lawfully in the ear and have standing to object to a search of it.” Defendant Robert Aulicino’s Reply Memorandum of Law In Support of Pre-Trial Motions, at pp. 7-8. Palazzolo’s affidavit, of course, utterly fails to provide any information demonstrating that Olivieri, Palazzolo and Aulicino were legitimately in the Buick. Even if Olivieri could establish that he had lawful custody of the vehicle, Aulicino — as a mere passenger— would still lack standing to object to a search of the vehicle. In United States v. Padilla, — U.S.-, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), the Supreme Court confronted a Ninth Circuit case holding that a co-conspirator “obtains a legitimate expectation of privacy for Fourth Amendment purposes if he has either a supervisory role in the conspiracy or joint control over the place or property involved in the search.” The Supreme Court reversed, reaffirming that defendants must demonstrate a “legitimate expectation of privacy in the area searched.” In reversing, the Court reaffirmed its holding in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), where the Court concluded that passengers in a car had no standing to challenge the seizure of a rifle and ammunition from that car. Because defendant Aulicino has failed to carry his burden to establish standing, his motion to suppress evidence seized from the second Buick must be denied. See also United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (defendants have no standing to challenge a search and seizure of evidence from an apartment rented by the mother of one of the defendants); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (defendants have no standing to challenge the seizure of evidence from a car in which they were riding, but which they did not" }, { "docid": "6284102", "title": "", "text": "and Boruff presented evidence concerning his interest in the pickup truck. The district court denied Boruff’s motion to suppress, concluding that he had no legitimate expectation of privacy in the pickup truck or the rental car and therefore had no standing to challenge the searches. Boruff was tried by jury and convicted on both counts of the indictment. The district court sentenced Boruff to ten years’ imprisonment, a three-year term of special parole, and $100 in special assessments. Boruff now appeals, contending that the district court erred in denying his standing to challenge the search of the truck and the rental car. He also argues that he should not have been tried on the superseding indictment, that the district court erroneously conditioned the giving of a requested jury instruction on a waiver of his right to remain silent, and that the court erred in allowing Agent Clanton to testify concerning Boruff’s conversation with his attorney. We affirm. III. Analysis. A. Standing. The district court may not suppress evidence under the fourth amendment unless the defendant establishes that an unlawful search or seizure violated his own constitutional rights. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980). “[T]he defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.” Id. (Emphasis in original). The fourth amendment does not protect merely subjective expectations of privacy but only those “expectations] that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). 1. The pickup truck Boruff argues that he had a legitimate expectation of privacy in the pickup truck because (1) he was the equitable owner of the truck and had a possessory interest in it, (2) he exercised joint control over the truck during the smuggling operation, and (3) he had a subjective expectation of privacy in the truck and took precautionary measures to safeguard that privacy. He con tends that Taylor’s legal title to the truck did" }, { "docid": "23169704", "title": "", "text": "of privacy” necessary for standing to challenge the legality of the searches involved. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court held that in order to challenge the legality of a search or seizure, a person must show that he had a “legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. See also, United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980). There has been no showing, and we believe appellants would be hard pressed to demonstrate, that they had any expectation of privacy in either the business offices of the clearinghouses or in the business records seized. See Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 90, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). Because the evidence at issue was seized legally and because appellants have no standing to challenge the legality of the searches, we hold that appellants are precluded from raising this issue again on remand. Prejudgment Interest Appellants also contend that the bankruptcy court abused its discretion in granting prejudgment interest to the trustee. Although they acknowledge that the court has broad discretion in determining when prejudgment interest should be granted to the prevailing party, they argue that the court’s failure to consider the merit of their defenses constitutes error because such consideration was essential to the proper exercise of the court’s discretion. However, appellants cite no authority for their argument, and we find it to be without merit. If we are to find that the bankruptcy court abused its discretion, we “must have a definite conviction that the court, upon weighing relevant factors, clearly erred in its judgment.” Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983) (citing Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir.1980); Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980)). Thus, appellants can prevail only if we find that the bankruptcy court “clearly erred in its" }, { "docid": "17736223", "title": "", "text": "expectation of privacy in the trailer and therefore had standing to challenge the seizure of marijuana. Because “no facts were adduced at the hearing from which the government could reasonably have inferred the existence of the defendant’s standing,” we conclude the government did not waive its right to challenge defendant Vargas’s standing. Id. We turn to the issue of whether Vargas has standing to contest the seizure of marijuana from Torres’s trailer. “Fourth Amendment rights are personal rights which ... may not be vicariously asserted.” United States v. Fuesting, 845 F.2d 664, 671 (7th Cir.1988) (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969)). “It has long been the rule that a defendant can urge the suppression of evidence obtained in viola tion of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure.” United States v. Padilla, -U.S.-,-, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993). To establish that he has standing to claim that his Fourth Amendment rights were violated, Vargas must demonstrate that he had a legitimate expectation of privacy in the premises searched or the items seized. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “A legitimate expectation of privacy is an expectation actually and subjectively held by the defendant and one which society is prepared to recognize as reasonable.” United States v. Tobin, 890 F.2d 319, 324 (11th Cir.1989) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). “A defendant objecting to the search of a particular area bears the burden of proving a legitimate expectation of privacy in the area searched.” United States v. Duprey, 895 F.2d 303, 309 (7th Cir.1989). In this ease, dealing with the court’s ruling following the suppression hearing before trial, Vargas lacks standing to challenge the seizure of the marijuana because he failed to submit evidence such as testimony or affidavits that he had a legitimate expectation of privacy in the area searched (trailer) or the item seized" }, { "docid": "6284103", "title": "", "text": "establishes that an unlawful search or seizure violated his own constitutional rights. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980). “[T]he defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.” Id. (Emphasis in original). The fourth amendment does not protect merely subjective expectations of privacy but only those “expectations] that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). 1. The pickup truck Boruff argues that he had a legitimate expectation of privacy in the pickup truck because (1) he was the equitable owner of the truck and had a possessory interest in it, (2) he exercised joint control over the truck during the smuggling operation, and (3) he had a subjective expectation of privacy in the truck and took precautionary measures to safeguard that privacy. He con tends that Taylor’s legal title to the truck did not negate this legitimate expectation of privacy because property-law concepts are not controlling on the standing issue. In response, the government denies that Boruff had a legitimate expectation of privacy in the pickup truck. It argues that Boruff’s ownership and possessory interests were tenuous at best and that Boruff completely disassociated himself from the truck. The government also contends that we are bound under the law of the case by our prior holding that Boruff has no standing to challenge the search of the truck. The law of the case does not control our decision on this issue because the evidence presented at Boruff s standing hearing was “substantially different” from that adduced at the prior suppression hearing. White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967). Our previous holding was based on a lack of evidence in the record that Boruff had any interest in “Taylor’s truck.” Boruff, No. 86-1175, slip op. at- 9. Boruff subsequently presented evidence of his interest. The only reason Boruff had not presented this evidence before was because the" } ]

[ { "docid": "22329369", "title": "", "text": "Justice Blackmun delivered the opinion of the Court. Appellant Eugene F. Diamond is a pediatrician engaged in private practice in Illinois. He seeks to defend before this Court the constitutionality of four sections of the Illinois Abortion Law of 1975, as amended. These sections impose criminal liability for the performance of an abortion under certain circumstances, and, under other circumstances, require that the woman be provided with particular abortion-related information. The State of Illinois has chosen to absent itself from this appeal, despite the fact that its statute is at stake. Because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for want of jurisdiction. I On October 30, 1979, over gubernatorial veto, the Illinois Legislature amended the State’s 1975 Abortion Law to provide for increased regulation. 1979 Ill. Laws, Pub. Act 81-1078. That very day appellees, four physicians who provide obstetric, gynecologic, and abortion services in Illinois, filed a class action in the United States District Court for the Northern District of Illinois. They alleged a deprivation of rights in violation of 42 U. S. C. § 1983 by the Illinois officials charged with enforcing the Abortion Law. Appellees sought declaratory and injunctive relief. The next day, the District Court certified the plaintiff class and temporarily restrained enforcement of the entire statute. On November 8, appellant Diamond filed a motion to intervene as a party defendant, either permissively or as of right, and to be appointed guardian ad litem for fetuses who survive abortion. The motion for intervention professed to be based on Doctor Diamond’s conscientious objection to abortions, and on his status as a pediatrician and as a parent of an unemancipated minor daughter. Over appellees’ objection, the District Court granted Diamond’s motion to intervene. The District Court did not indicate whether the intervention was permissive or as of right, and it did not describe how Diamond’s interests in the litigation satisfied the requirements of Federal Rule of Civil Procedure 24 for intervenor status. The court denied the guardianship" } ]

[ { "docid": "11660480", "title": "", "text": "v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). Both Lewis and Diamond sire distinguishable from our case. Diamond sought to defend the constitutionality of part of an Illinois abortion law based on his personal objection to abortions and his status as a pediatrician and as a parent of an unemancipated minor daughter. 476-U.S. at 56-58, 106 S.Ct. 1697. He appealed the Seventh Circuit’s grant of a permanent injunction after the State of Illinois chose not to appeal. Id. at 61, 106 S.Ct. 1697. Because Diamond had no judicially cognizable interest in the statute’s defense, the Supreme Court dismissed for want of jurisdiction. Id. at 56, 106 S.Ct. 1697. The Court held that Diamond did not have standing to appeal simply because the district court had assessed the plaintiffs attorneys’ fees against him under § 1988 and he would have to pay those fees unless the State’s regulations were reinstated on appeal. Id. at 69-70, 106 S.Ct. 1697. It was not the case that Diamond \" personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ ” as required by Article III. Id. at 70, 106 S.Ct. 1697 (internal citations omitted). The Court determined that: [a]ny liability for fees is, of course, a consequence of Diamond's decision to intervene, but it cannot fairly be traced to the Illinois Abortion Law. The fee award is wholly unrelated to the subject matter of the litigation, and bears no relation to the statute whose constitutionality is at issue here. Id. By contrast, Appellants in the instant case allege that they were injured by the \"putatively illegal conduct of the defendant.” Attorneys’ fees and costs are part of the compensation mandated in § 4 as a result of a defendant's provable violation of federal antitrust laws. Thus, the mandatory fee award is a part of the subject matter of the litigation and must be awarded to every successful plaintiff." }, { "docid": "22422198", "title": "", "text": "response action at the site.” Second, NWF argued that the proposed decree ran afoul of CERCLA § 122(j) because it contemplated that the defendants would obtain covenants not to sue without any assurance that they would “take appropriate actions necessary to protect and restore the natural resources damaged by such release ... of hazardous substances.” 42 U.S.C. § 9622(j)(2)i Unimpressed by NWF’s comments, the plaintiffs pressed the district court to approve the consent decree. On July 16, 1991, the district court, ore tenus, overruled NWF’s objections and entered the decree. This appeal followed. Because the dispositive issue in this proceeding implicates NWF’s standing to pursue its appeal, we turn immediately in that direction. NWF, an intervenor, is the lone appellant. The plaintiffs (the federal and state governments) and the settling defendants (Aerovox and Belleville) all appear as appellees, the district court having entered final judgment, Fed.R.Civ.P. 54(b), as to all claims against Aerovox and Belleville. The suit remains pending in the court below against other defendants. II. THE NECESSITY FOR STANDING Our odyssey through the often Byzantine world of standing is greatly assisted in this instance by the Supreme Court’s opinion in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). There, Dr. Diamond, a pediatrician, intervened as a defendant in a class action brought by a group of gynecologists seeking to invalidate an Illinois abortion law. Later, disappointed by an opinion of the Seventh Circuit, Dr. Diamond took an appeal to the Supreme Court in which he sought to challenge an injunction barring enforcement of certain sections of the statute. Id. at 61, 106 S.Ct. at 1702. He prosecuted the appeal notwithstanding that the state (on whose side he had originally intervened) chose not to pursue a further appeal. Id. at 56, 61, 106 S.Ct. at 1700, 1702. The Court ruled that, since the inter-venor was the sole appellant, he could no longer ride the state’s coattails, but must himself bear the burden of showing that he met the requirements for standing. Id. at 63-64, 106 S.Ct. at 1703-1705. In language of unmistakable clarity, Justice" }, { "docid": "82054", "title": "", "text": "on their request for attorneys' fees, they also could not win their other sought-after relief. See, e.g., Aplt.App. at 2203 (Mem. & Order) (\"The parties . agree that an award of nontaxable expenses depends on whether the court awards attorneys’ fees.”). And on appeal, the parties’ arguments reflect the same understanding. For reasons explicated infra, the parties’ perception of the interrelationship between attorneys’ fees and the other monetary relief that plaintiffs seek has a solid grounding in the law. Given this interrelationship, we have no occasion here to analyze discretely plaintiffs' entitlement to the three components of relief sought in their motion; instead, our analytical focus is on the propriety of the district court’s ruling regarding attorneys' fees. . We have also stated that a plaintiff may not use a dispute over attorneys' fees to revive an otherwise moot controversy on the merits. See Fleming v. Gutierrez, 785 F.3d 442, 448 (10th Cir.2015) (\"The possibility that the preliminary injunction will form the basis for a grant of attorney’s fees does not transform this appeal into a live controversy.”); see also Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (\"This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” (citation omitted)); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (holding that a party does not have an interest in an underlying claim just because prevailing would entitle the party to attorneys' fees); Davidson, 236 F.3d at 1183 (stating that Dah-lem does not stand for the proposition that \"an otherwise moot issue is revived whenever a prevailing party requests or might request fees”). But that is not the case here. The cross-appeal solely seeks our ruling on the motion for attorneys’ fees, not on any underlying action that might affect the ability to collect attorneys' fees. Our cases have confirmed that a claim for attorneys' fees remains viable even after the underlying action becomes moot. See Fleming, 785 F.3d at 448; Davidson, 236 F.3d at 1183. In sum, these" }, { "docid": "11127962", "title": "", "text": "point merits our attention. Company Doe argues that, because it prevailed on its claims before the district court and secured an injunction barring the Commission from publishing the challenged report of harm, Consumer Groups cannot stand in the Commission’s shoes and seek appellate review of the district court’s sealing order, which was necessary to effectuate the district court’s judgment. In support of this contention, Company Doe directs us to Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), and Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). In Diamond, a pediatrician who was licensed to practice medicine in Illinois, and who was a “conscientious object[or] to abortions,” sought to defend the constitutionality of a state statute governing abortions after the state elected not to appeal an injunction enjoining enforcement of certain provisions of the statute. 476 U.S. at 57-58, 106 S.Ct. 1697. The state Attorney General filed a letter with the Supreme Court stating that his interest in the continued proceedings was “essentially co-ter-minous with the position on the issues set forth by the [petitioner].” Id. at 61, 106 S.Ct. 1697 (internal quotation marks omitted). The Court, however, held that the petitioner lacked constitutional standing to appeal the lower court’s decision because only the state possessed a direct stake in defending the constitutionality of its statute. Id: at 65, 106 S.Ct. 1697. Because the petitioner had no judicially cognizable interest of his own in the challenged statute, he had no standing to appeal the judgment below in the absence of the state. Id. at 71, 106 S.Ct. 1697. In Hollingsworth, the proponents of a ballot initiative that amended the California constitution to define marriage as between one man and one woman sought to defend the law’s constitutionality after the named defendants — a group of state and local officials responsible for enforcing California’s marriage laws — refused to defend the law. 133 S.Ct. at 2660. The Supreme Court held that the proponents lacked standing because they had no personal stake in defending the law’s enforcement that was distinct from the general" }, { "docid": "1403279", "title": "", "text": "to Mr. Chadwick’s refusal to comply with the state court order under which he is being held. The District Court’s order would erase the effect of the state court order requiring the return of the funds and would significantly reduce Mrs. Chadwick’s share of the marital estate. Third, Mrs. Chadwick’s injury may be redressed by a favorable decision here. A reversal of the District Court’s order granting Mr. Chadwick’s petition would require him to remain in prison until he returns the $2.5 million to the state court for later distribution. In arguing that Mrs. Chadwick lacks standing, the petitioner relies principally on Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), but that case is easily distinguishable. The Diamond case involved a constitutional attack on an Illinois statute restricting abortions. Id. at 56, 106 S.Ct. 1697. Diamond, a pediatrician, successfully moved to intervene in the District Court, based on his conscientious objection to abortion and his status as a pediatrician and the father of a minor daughter. Id. at 66, 106 S.Ct. 1697. When the District Court permanently enjoined provisions of the statute and the Court of Appeals affirmed, the State of Illinois did not appeal to the Supreme Court, but Diamond did. Id. at 62-63, 106 S.Ct. 1697. The Court held that Diamond could not maintain the appeal as the sole appellant because he lacked Article III standing. Id. at 64-71, 106 S.Ct. 1697. Noting that Illinois, by not appealing, had accepted the decision that its statute was unconstitutional, the Court observed that even if it upheld the statute, Diamond, a private citizen, could not compel the state to enforce it. Id. at 64-65, 106 S.Ct. 1697. In addition, the Court explained, Diamond could not establish that he had or would suffer injury in fact. Id. at 65-71, 106 S.Ct. 1697. Diamond argued that if the statute were upheld, there would be fewer abortions and greater demand for his services as a pediatrician, but the Court dismissed this argument as speculative. Id. at 66, 106 S.Ct. 1697. The Court likewise rejected Diamond’s contention that he" }, { "docid": "19394204", "title": "", "text": "and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.\" Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). There are \"certain, limited exceptions\" to that rule. Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still \"must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.\" Id., at 411, 111 S.Ct. 1364 (internal quotation marks omitted). In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State's abortion law. In that case, a group of physicians filed a constitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond, a professed \"conscientious object[or] to abortions,\" intervened to defend it alongside the State. 476 U.S., at 57-58, 106 S.Ct. 1697. After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state attorney general filed a \" 'letter of interest,' \" explaining that the State's interest in the proceeding was \" 'essentially co-terminous with the position on the issues set forth by [Diamond].' \" Id., at 61, 106 S.Ct. 1697. That was not enough, we held, to allow the appeal to proceed. As the Court explained, \"[e]ven if there were circumstances in which a private party would have standing to defend the constitutionality of a challenged statute, this [was] not one of them,\" because Diamond was not able to assert an injury in fact of his own. Id., at 65, 106 S.Ct. 1697 (footnote omitted). And without \"any judicially cognizable interest,\" Diamond could not \"maintain the litigation abandoned by the State.\" Id., at 71, 106 S.Ct. 1697. For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State's interests. B Petitioners" }, { "docid": "22422199", "title": "", "text": "often Byzantine world of standing is greatly assisted in this instance by the Supreme Court’s opinion in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). There, Dr. Diamond, a pediatrician, intervened as a defendant in a class action brought by a group of gynecologists seeking to invalidate an Illinois abortion law. Later, disappointed by an opinion of the Seventh Circuit, Dr. Diamond took an appeal to the Supreme Court in which he sought to challenge an injunction barring enforcement of certain sections of the statute. Id. at 61, 106 S.Ct. at 1702. He prosecuted the appeal notwithstanding that the state (on whose side he had originally intervened) chose not to pursue a further appeal. Id. at 56, 61, 106 S.Ct. at 1700, 1702. The Court ruled that, since the inter-venor was the sole appellant, he could no longer ride the state’s coattails, but must himself bear the burden of showing that he met the requirements for standing. Id. at 63-64, 106 S.Ct. at 1703-1705. In language of unmistakable clarity, Justice Blackmun wrote that “an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the inter-venor that he fulfills the requirements of Art. III.” Id. at 68, 106 S.Ct. at 1706. Accord Boston Tow Boat Co. v. United States, 321 U.S. 632, 633-34, 64 S.Ct. 776, 776-77, 88 L.Ed. 975 (1944). Because he had not made the requisite showing, Dr. Diamond’s appeal was dismissed for want of appellate jurisdiction. See Diamond, 476 U.S. at 71, 106 S.Ct. at 1708. NWF suggests that Diamond is not controlling because the original parties here— the federal and state sovereigns, on the one hand, and the settling defendants, on the other hand — remain parties to the appeal. This suggestion is a prime example of a litigant allowing hope to triumph over reason. In Diamond, the intervenor also argued that the party on whose side he intervened — the state — remained a party to the litigation, thus keeping the original controversy alive and allowing" }, { "docid": "11127961", "title": "", "text": "not from a statute but from the Constitution and common law, the nature of them alleged injury is indistinguishable from the informational harm suffered by the plaintiffs in the above cases. Consumer Groups’ injury is formed by their inability to access judicial documents and materials filed in the proceedings below, information that they contend they have a right to obtain and inspect under the law. Because the public right of access under the First Amendment and common law protects individuals from the very harm suffered by Consumer Groups, their injury transcends a mere abstract injury such as a “common concern for obedience to law.” L. Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295, 303, 61 S.Ct. 254, 85 L.Ed. 198 (1940). Consumer Groups are public interest organizations that advocate directly on the issues to which the underlying litigation and the sealed materials relate. By seeking, and having been denied access to, documents they allege a right to inspect, Consumer Groups have a direct stake in having a concrete injury redressed. One final point merits our attention. Company Doe argues that, because it prevailed on its claims before the district court and secured an injunction barring the Commission from publishing the challenged report of harm, Consumer Groups cannot stand in the Commission’s shoes and seek appellate review of the district court’s sealing order, which was necessary to effectuate the district court’s judgment. In support of this contention, Company Doe directs us to Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), and Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). In Diamond, a pediatrician who was licensed to practice medicine in Illinois, and who was a “conscientious object[or] to abortions,” sought to defend the constitutionality of a state statute governing abortions after the state elected not to appeal an injunction enjoining enforcement of certain provisions of the statute. 476 U.S. at 57-58, 106 S.Ct. 1697. The state Attorney General filed a letter with the Supreme Court stating that his interest in the continued proceedings was “essentially co-ter-minous with the" }, { "docid": "11660478", "title": "", "text": "monetary relief in the form of mandatory attorneys' fees and costs, if an antitrust action against any Defendant is \"sustained.” Additionally, Ortiz did not involve attorneys’ fees or the Clayton Act. The Seventh Circuit determined that Ortiz was not \"entitled to compensatory damages over and above the lost wages and benefits that were offset by the NLRB settlement” because she waived her arguments by failing to raise them before the district court. Id. at 1126. . Indeed, because there has been no determination of liability with respect to the alleged antitrust violation on the part of any Appellees, a decision to the contrary would result in a windfall not negotiated for by any party. Appellees would benefit from a settlement that they had no role in and avoid any determination that they violated antitrust law even though the Stewart settlement explicitly disclaimed resolution for or against antitrust liability even as to Stewart. Further, new consumers with unsettled compensatory damages claims could begin this case anew to determine liability. . Indeed, even the concurrence observed that if one accepts that “Sciambra [was] rightly decided, then it is clear that an antitrust plaintiff can proceed to trial for a determination of liability and a potential fee award, even where prior settlements already have clearly negated any actual receipt of further damages.” Gulfstream III Associates v. Gulfstream Aerospace (Gulfstream II), 995 F.2d 425, 443 (3d Cir.1993) (Greenberg, J., concurring). Judge Greenberg cited several arguments to support his view, including that: (1) attorneys’ fees and costs are mandatory under the Clayton Act; (2) the magnitude of attorneys’ fees and costs indicate they are a \"crucial component of a plaintiff's recovery” that may exceed the compensatory damages sought; and (3) a trial merely to determine whether to award attorneys’ fees and costs will be extremely rare. Id. at 442-44. . The Appellees mistakenly rely upon the following language in Lewis: \"[t]his interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Id. at 480, 110 S.Ct. 1249 (citing Diamond," }, { "docid": "2051690", "title": "", "text": "the Act. Charles v. Carey, 579 F.Supp. 377 (N.D.Ill.1983). By the time proceedings in the district court were concluded, the court had permanently enjoined enforcement of twenty-five sections of the Act, including its primary operative provisions. See Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983). The intervenors, together with the Illinois Attorney General and State’s Attorney Daley, immediately appealed the issuance of the permanent injunction, but only with respect to three key sections of the Act. The plaintiffs cross-appealed, alleging that the district court erred in finding constitutional a previously disputed section of the Act. Once again, the intervenors were dealt another setback; we affirmed the permanent injunction of the three sections already enjoined and also held the fourth section unconstitutional. Charles v. Daley, 749 F.2d 452 (7th Cir.1984). Following their second defeat before this court, intervenors Diamond and Williams filed both a notice of appeal and a jurisdictional statement with the Supreme Court on February 28, 1985. Neither the Illinois Attorney General nor State’s Attorney Daley joined in these submissions. The Supreme Court granted review and the case was fully briefed and argued on November 5, 1985. Subsequently, in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court dismissed the appeal concluding that absent the participation of the governmental defendants, Doctor Diamond lacked standing to prosecute the appeal. This court’s decision in Charles v. Daley, 749 F.2d 452 (7th Cir.1984), thus stands as the final word on the constitutionality of the amended Illinois Abortion Law of 1975. Our recapitulation of the procedural posture of this case notwithstanding, this appeal does not concern the merits of the previous litigation; rather, we are concerned only with the propriety of the district court’s award of fees to the plaintiffs for expenses they incurred throughout the protracted course of this lawsuit. On two separate occasions, pursuant to 42 U.S.C. § 1988, the plaintiffs filed petitions for an award of attorneys’ fees and costs for work performed in the district court. Neither petition specifically sought fees and costs from the intervenors. The Illinois Attorney General filed a response to" }, { "docid": "11660479", "title": "", "text": "if one accepts that “Sciambra [was] rightly decided, then it is clear that an antitrust plaintiff can proceed to trial for a determination of liability and a potential fee award, even where prior settlements already have clearly negated any actual receipt of further damages.” Gulfstream III Associates v. Gulfstream Aerospace (Gulfstream II), 995 F.2d 425, 443 (3d Cir.1993) (Greenberg, J., concurring). Judge Greenberg cited several arguments to support his view, including that: (1) attorneys’ fees and costs are mandatory under the Clayton Act; (2) the magnitude of attorneys’ fees and costs indicate they are a \"crucial component of a plaintiff's recovery” that may exceed the compensatory damages sought; and (3) a trial merely to determine whether to award attorneys’ fees and costs will be extremely rare. Id. at 442-44. . The Appellees mistakenly rely upon the following language in Lewis: \"[t]his interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Id. at 480, 110 S.Ct. 1249 (citing Diamond, v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). Both Lewis and Diamond sire distinguishable from our case. Diamond sought to defend the constitutionality of part of an Illinois abortion law based on his personal objection to abortions and his status as a pediatrician and as a parent of an unemancipated minor daughter. 476-U.S. at 56-58, 106 S.Ct. 1697. He appealed the Seventh Circuit’s grant of a permanent injunction after the State of Illinois chose not to appeal. Id. at 61, 106 S.Ct. 1697. Because Diamond had no judicially cognizable interest in the statute’s defense, the Supreme Court dismissed for want of jurisdiction. Id. at 56, 106 S.Ct. 1697. The Court held that Diamond did not have standing to appeal simply because the district court had assessed the plaintiffs attorneys’ fees against him under § 1988 and he would have to pay those fees unless the State’s regulations were reinstated on appeal. Id. at 69-70, 106 S.Ct. 1697. It was not the case that Diamond \" personally has suffered some actual" }, { "docid": "1403281", "title": "", "text": "had standing because of his interest in the standards of medical practice relating to abortion. Id. at 66-67. The Court stated that Diamond’s abstract interest in the issue of abortion could not substitute for the concrete injury demanded by Article III. Id. In response to Diamond’s claim of standing as the father of a minor daughter, the Court noted that the validity of the parental notification provision of the statute was not at issue in the appeal and Diamond had not provided factual support to show that the. provisions that were at issue threatened him with any concrete injury. Id. at 67, 106 S.Ct. 1697. Finally, the Court held that Diamond could not assert any constitutional rights of unborn fetuses and that the award of fees against him in the District Court could not “fairly be traced to the Illinois Abortion Law.” Id. at 70,106 S.Ct. 1697. Other than the fact that Diamond and Mrs. Chadwick are both intervenors, the two cases have little in common. Mrs. Chadwick, as noted, has a direct financial interest: she wants Mr. Chadwick to produce a very substantial sum of money in which she claims a share. By contrast, Diamond’s claim that upholding the Illinois law would result in more live births and thus increase his income as a pediatrician was highly speculative and an obvious makeweight. Diamond was a classic case of an attempt to litigate an abstract legal issue; the present case involves a concrete monetary interest. Mr. Chadwick argues, however, that Mrs. Chadwick has no concrete injury at stake because “even if she were somehow to secure a reversal of the district court’s order, the respondents would still be required to release Mr. Chadwick, because they did not appeal.” Appellee’s Br. at 21. We reject this highly technical argument and find Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir.1983), instructive on the question whether someone other than the legal custodian of a prisoner may appeal an adverse decision in a habeas proceeding. In Martin-Trigona, a bankruptcy judge ordered a debtor imprisoned for civil contempt when he refused to submit to examination" }, { "docid": "11660491", "title": "", "text": "must continue throughout the litigation. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524-25 (5th Cir.2008). Here, plaintiffs cannot demonstrate any personal stake in the continuance of the litigation following the Stewart Settlement because they have none. Their claimed damages have been met multiple times over by the Stewart Settlement. The case, as it relates to the plaintiffs, is moot because their injury has been remedied. The Supreme Court has previously stated that “a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107-08, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The plaintiffs’ attorneys’ argument for continuing this case for fees is nearly identical to that which was rejected in Steel Co., where the Court ruled that attempting to recoup statutory costs was not enough to confer standing. In that case, the money recovered would have gone to the United States Treasury, whereas here, any further money recovered would go to the attorneys. That distinction is of little merit because the Court has already stated that an “interest in attorney’s fees is ... insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). To have a ease or controversy, “[t]he litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” Steel Co., 523 U.S. at 107, 118 S.Ct. 1003. Where “the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained, solely in order to obtain reimbursement of sunk costs.\" Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (emphasis added). Although there is no Supreme Court precedent dealing with this issue in the context of a Clayton Act violation, the" }, { "docid": "1281243", "title": "", "text": "regulation over abortions. Id. at 56, 106 S.Ct. at 1700. Because they faced possible prosecution under the new law, these physicians clearly had standing to bring suit against the state officials enforcing the law. Id. at 64, 106 S.Ct. at 1704. When the district court granted a permanent injunction against the law’s enforcement, the State did not appeal. Diamond, a pediatrician who intervened in the action based on his conscientious objection to abortions and his status as a pediatrician and a parent, appealed the injunction that made the law unenforceable. The Supreme Court dismissed the action because “a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense.” Id. at 56, 106 S.Ct. at 1700. The Court noted that had the State sought review, the “case” or “controversy” requirement would have been met because “a State has standing to defend the constitutionality of its statute.” Id. at 62, 106 S.Ct. at 1703. Furthermore, if the State had appealed, the pediatrician, as intervenor, would have been entitled under Supreme Court Rule 10.4 to seek review. Id. at 64, 106 S.Ct. at 1704. However, the Court explained that the State’s failure to appeal left the Court without a case or controversy between the plaintiffs and the State. Absent an appeal by the State, Diamond could not continue the litigation because, even if the challenged law ultimately were held to be constitutional, Diamond could not compel the State to enforce it since ‘“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.’” Id. at 63, 106 S.Ct. at 1704 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)). The Court noted as well, quoting Allen v. Wright, 468 U.S. at 754, 104 S.Ct. at 3326, that the “right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Finally, the Court concluded: The concerns for state autonomy that deny private individuals the right to compel" }, { "docid": "1281242", "title": "", "text": "enforcement of the new law to negate the competitive advantage of contractors such as plaintiffs “who employ unlicensed, untrained, and unsupervised individuals whom they designate as apprentices to perform work NECA members and other responsible employers have performed....” Both of the interests asserted by NECA are interests in having the state law enforced. In essence then, by intervening in this litigation and attempting to pursue this appeal, NECA seeks to require the State of Michigan to enforce its own statute. The issue, therefore, is whether these interests in the statute’s enforcement are sufficient to confer standing on NECA to appeal what the state has elected not to appeal — the district court’s order that the state law is not enforceable. We find that Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) is controlling here, and that, under the reasoning of that ease, NECA lacks standing to prosecute this appeal. In Diamond, four physicians who provided obstetric, gynecologic, and abortion services in Illinois filed suit challenging an Illinois law that increased regulation over abortions. Id. at 56, 106 S.Ct. at 1700. Because they faced possible prosecution under the new law, these physicians clearly had standing to bring suit against the state officials enforcing the law. Id. at 64, 106 S.Ct. at 1704. When the district court granted a permanent injunction against the law’s enforcement, the State did not appeal. Diamond, a pediatrician who intervened in the action based on his conscientious objection to abortions and his status as a pediatrician and a parent, appealed the injunction that made the law unenforceable. The Supreme Court dismissed the action because “a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense.” Id. at 56, 106 S.Ct. at 1700. The Court noted that had the State sought review, the “case” or “controversy” requirement would have been met because “a State has standing to defend the constitutionality of its statute.” Id. at 62, 106 S.Ct. at 1703. Furthermore, if the State had appealed, the pediatrician, as intervenor," }, { "docid": "1403280", "title": "", "text": "S.Ct. 1697. When the District Court permanently enjoined provisions of the statute and the Court of Appeals affirmed, the State of Illinois did not appeal to the Supreme Court, but Diamond did. Id. at 62-63, 106 S.Ct. 1697. The Court held that Diamond could not maintain the appeal as the sole appellant because he lacked Article III standing. Id. at 64-71, 106 S.Ct. 1697. Noting that Illinois, by not appealing, had accepted the decision that its statute was unconstitutional, the Court observed that even if it upheld the statute, Diamond, a private citizen, could not compel the state to enforce it. Id. at 64-65, 106 S.Ct. 1697. In addition, the Court explained, Diamond could not establish that he had or would suffer injury in fact. Id. at 65-71, 106 S.Ct. 1697. Diamond argued that if the statute were upheld, there would be fewer abortions and greater demand for his services as a pediatrician, but the Court dismissed this argument as speculative. Id. at 66, 106 S.Ct. 1697. The Court likewise rejected Diamond’s contention that he had standing because of his interest in the standards of medical practice relating to abortion. Id. at 66-67. The Court stated that Diamond’s abstract interest in the issue of abortion could not substitute for the concrete injury demanded by Article III. Id. In response to Diamond’s claim of standing as the father of a minor daughter, the Court noted that the validity of the parental notification provision of the statute was not at issue in the appeal and Diamond had not provided factual support to show that the. provisions that were at issue threatened him with any concrete injury. Id. at 67, 106 S.Ct. 1697. Finally, the Court held that Diamond could not assert any constitutional rights of unborn fetuses and that the award of fees against him in the District Court could not “fairly be traced to the Illinois Abortion Law.” Id. at 70,106 S.Ct. 1697. Other than the fact that Diamond and Mrs. Chadwick are both intervenors, the two cases have little in common. Mrs. Chadwick, as noted, has a direct financial interest:" }, { "docid": "11660492", "title": "", "text": "That distinction is of little merit because the Court has already stated that an “interest in attorney’s fees is ... insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). To have a ease or controversy, “[t]he litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” Steel Co., 523 U.S. at 107, 118 S.Ct. 1003. Where “the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained, solely in order to obtain reimbursement of sunk costs.\" Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (emphasis added). Although there is no Supreme Court precedent dealing with this issue in the context of a Clayton Act violation, the plaintiffs bear the burden of demonstrating that the litany of Supreme Court cases on similar statutory costs and attorneys’ fees are inapplicable. They fail to do so. Their strongest argument for continuing with this litigation is a misreading of a prior case in this circuit, Sciambra, which sat in a markedly different procedural posture from the case now before us. Sciambra v. Graham News, 892 F.2d 411 (5th Cir.1990). Sciambra dealt with statutory costs and attorneys’ fees under the Clayton Act, but the court had already found antitrust liability against the defendants through a default judgment. Since liability was already established, statutory attorneys’ fees were awarded. Despite arguments to the contrary by the plaintiffs and the majority, Sciambra is not controlling of the outcome of this case. What the attorneys here request is completely different from Sciambra because liability, and the right to be awarded attorneys’ fees, has yet to be ascertained. To be clear, the plaintiffs’ attorneys are not asking for a hearing to determine the amount of their fees, a perfectly reasonable request." }, { "docid": "82055", "title": "", "text": "a live controversy.”); see also Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (\"This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” (citation omitted)); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (holding that a party does not have an interest in an underlying claim just because prevailing would entitle the party to attorneys' fees); Davidson, 236 F.3d at 1183 (stating that Dah-lem does not stand for the proposition that \"an otherwise moot issue is revived whenever a prevailing party requests or might request fees”). But that is not the case here. The cross-appeal solely seeks our ruling on the motion for attorneys’ fees, not on any underlying action that might affect the ability to collect attorneys' fees. Our cases have confirmed that a claim for attorneys' fees remains viable even after the underlying action becomes moot. See Fleming, 785 F.3d at 448; Davidson, 236 F.3d at 1183. In sum, these opinions hold that a controversy over attorneys' fees remains viable on its own, but does not give life to any other mooted dispute. . The fact that relief here is declaratory relief, rather than damages, does not prevent the finding of a substantial benefit. See, e.g., Mills, 396 U.S. at 392, 90 S.Ct. 616 (concluding that a common-benefit exception award was not barred by \"[t]he fact that this suit has not yet produced, and may never produce, a monetary recovery”). . This question appears to have been presented to a panel of our court but we had no occasion to resolve it. Specifically, in Kornfeld v. Kornfeld, 341 Fed.Appx. 394 (10th Cir.2009) (unpublished), the district court had based its fee award on a finding of bad faith, and we remanded the fee award for a more specific finding of whether the bad faith at issue could meet our narrow test. See Kornfeld, 341 Fed.Appx. at 400. The district court had also purportedly relied on § 2202 to justify the fee award, but we declined to" }, { "docid": "19394203", "title": "", "text": "(KENNEDY, J., dissenting), that is not a \"particularized\" interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U.S., at 560, and n. 1, 112 S.Ct. 2130; see Arizonans for Official English, 520 U.S., at 65, 117 S.Ct. 1055 (\"Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.\"); Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077, 103 S.Ct. 1762, 76 L.Ed.2d 338 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional). III A Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if they have no cognizable interest in appealing the District Court's judgment, the State of California does, and they may assert that interest on the State's behalf. It is, however, a \"fundamental restriction on our authority\" that \"[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.\" Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). There are \"certain, limited exceptions\" to that rule. Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still \"must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.\" Id., at 411, 111 S.Ct. 1364 (internal quotation marks omitted). In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State's abortion law. In that case, a group of physicians filed a constitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond, a professed \"conscientious object[or] to abortions,\" intervened to defend it alongside the State. 476 U.S., at 57-58, 106 S.Ct. 1697. After the Seventh Circuit affirmed a permanent injunction against enforcing several" }, { "docid": "17874166", "title": "", "text": "not decide today whether a party seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III.”). We think that these courts misinterpret Diamond, and further offer little justification for reading this new requirement into Article III. In Diamond, the Supreme Court held that an intervenor could not pursue an appeal in that Court, in the absence of the party on whose side he had intervened, without independently possessing standing. Id. at 54-63, 106 S.Ct. at 1700-03. That case involved a challenge to the constitutionality of an Illinois abortion law. Diamond intervened in the district court to defend the statute, claiming an interest as a pediatrician and as a parent of an unemancipated minor daughter. Id. at 57-59, 106 S.Ct. at 1701. After the Court of Appeals struck down the law, Diamond wished to appeal. Unfortunately, the State of Illinois, on whose side Diamond had intervened, and the only party (other than Diamond) on that side of the case, declined to appeal. Id. at 61-63, 106 S.Ct. at 1703. The State’s failure to appeal the ruling destroyed the presence of a “case” or “controversy” before the Supreme Court. Id. at 63-64, 106 S.Ct. at 1704. “By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court without a ‘ease’ or ‘controversy’ between appel-lees and the State of Illinois.” Id. Therefore, in order for Diamond to have appealed the decision, he himself would have needed to satisfy Article Ill’s jurisdictional ease-or-controversy requirement. Id. at 66-69, 106 S.Ct. at 1706. Diamond could not do this, because his status as a “doctor, a father, and a protector of the unborn” did not create a sufficient interest in the litigation to establish standing. Id. at 64-66,106 S.Ct. at 1705. Diamond lacked standing; since Diamond was the only party pursuing the appeal, the case-or-eontroversy requirement was unsatisfied. Id." } ]

[ { "docid": "22106996", "title": "", "text": "such funding upon a State’s compliance with extensive goals and procedures.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 179 (1982). Congress has broad power to set the terms on which it disburses federal money to the States, see, e. g., South Dakota v. Dole, 488 U. S. 203, 206-207 (1987), but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambiguously,” see Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981); Rowley, supra, at 204, n. 26. “[LJegislation enacted pursuant to the spending power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds must accept them “voluntarily and knowingly.” Pennhurst, 451 U. S., at 17. States cannot knowingly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Ibid. Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the process of deciding whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case. Ill A In considering whether the IDEA provides clear notice, we begin with the text. We have “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). When the statutory “language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000) (quoting United States" } ]

[ { "docid": "21760104", "title": "", "text": "to speak to an ICE officer once the officer was allowed access. Ignoring the Department of Justice press releases, which the City claims amount to “mixed messages” (PL Mot. at 40), the Attorney General cites only to prior guidance on compliance on Section 1373, which it claims is unambiguous. Neither party would dispute that “federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy,” Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 669, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985), yet the emphasis on' the Challenged Conditions somewhat obscures the issue, acknowledged by both counsel at oral argument, of the role of Congress itself, to which the spending power is exclusively conferred under Article I. Spending Clause ambiguity cases generally involve statutory construction, not interpretation of conditions imposed by an agency. In a typical case, the state assails the-congressional statute itself for failing to unambiguously impose conditions on receipt of federal funds. See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006); Pennhurst, 451 U.S. 1, 101 S.Ct. 1531. This can occur whether or not the state is seeking to evade liability when sued by a private party, or in turn seeks legal relief against the federal government. Compare Arlington Cent. 548 U.S. 291, 126 S.Ct. 2455 and Pennhurst, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 with Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc). Such cases, naturally, frame their discussion in terms of Congress’ exercise of the purse strings under Article I: The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress" }, { "docid": "21760105", "title": "", "text": "U.S. 291, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006); Pennhurst, 451 U.S. 1, 101 S.Ct. 1531. This can occur whether or not the state is seeking to evade liability when sued by a private party, or in turn seeks legal relief against the federal government. Compare Arlington Cent. 548 U.S. 291, 126 S.Ct. 2455 and Pennhurst, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 with Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc). Such cases, naturally, frame their discussion in terms of Congress’ exercise of the purse strings under Article I: The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation. Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531 (internal citations omitted) (holding that Section 6010 of the Developmentally Disabled Assistance and Bill of Rights Act did not unambiguously condition receipt of federal funds on providing residents of disabled home a right to “appropriate treatment, services, and' habilitation” in “the setting that is least restrictive of the person’s personal liberty”). At least one subsequent opinion has posited that this passage analogizes the grant and receipt of federal funds to offer and acceptance in the process of contract formation. Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (citing id.). When engaging in an inquiry regarding ambiguity, a court “must view” a statute “from the perspective of a state official who is engaged in the process of deciding whether the. State should accept” federal funds. Arlington Cent., 548 U.S. at 296, 126 S.Ct. 2455. “In other words,” Arlington Central continued, a" }, { "docid": "3770030", "title": "", "text": "112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). At issue in Suter was a provision of the Adoption Assistance and Child Welfare Act that required participating States to submit a plan which “provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.” Id. at 351, 112 S.Ct. at 1364 (quoting 42 U.S.C. § 671(a)(15)). The Court began its discussion of the § 1983 inquiry by reviewing its earlier decisions, noting that the opinions in those cases “took pains to analyze the statutory provisions in detail, in light of the entire legislative enactment.” Id. at 357, 112 S.Ct. at 1367. The Court also revisited an earlier statement regarding the special concerns present in § 1983 suits brought to enforce the requirements of Congressional acts passed pursuant to the Spending Clause: The legitimacy of Congress’ power to legislate under the spending power ... rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or' is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Id. at 356, 112 S.Ct. at 1366 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981) ). The question in the ease before it, said the Court, was “Did Congress, in enacting the Adoption Act, unambiguously confer upon the child beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child from being removed from his home, and once removed to reunify the child with his family?” Id. at 357, 112 S.Ct. at 1367. Turning to an examination of “exactly what is required of States by the Act,” the Court wrote: Here," }, { "docid": "3395499", "title": "", "text": "families forced to resort to public assistance, and to reward states which maintain “cost-effective and efficient child support recovery operations.” By achieving net savings for federal, state, and local governments’ welfare appropriations Title IV-D will benefit the general public. Although state participation in the Social Security Act itself is mandatory, participation by a state in the IV-D program is voluntary. It is enacted pursuant to the spending power of Congress. Case law interpretation of Congress’ power to legislate pursuant to the spending power has recognized that when Congress fixes the terms on which it shall disburse federal money to the state, it is much in the nature of a contract: in return for federal funds, the states agree to comply with federally imposed conditions. Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1540, 67 L.Ed.2d at 707. Pennhurst held that a funding statute that did not clearly condition the receipt of federal money on the implementation of certain procedures did not create any enforceable rights. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” ... There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. 451 U.S. at 17, 101 S.Ct. at 1540, 67 L.Ed.2d at 707 (citations and footnote omitted). In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36 (1975), the Supreme Court enunciated four factors to determine whether a statute creates a private cause of action. In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” ... — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either" }, { "docid": "17468729", "title": "", "text": "a violation of their statutory right to “appropriate treatment.” The Court found the language “appropriate treatment” and “least restrictive” setting to be “largely indeterminate” and “too thin a reed” to support a creation of rights and obligations on the states. 451 U.S. at 19, 101 S.Ct. at 1541. “It is difficult to know what is meant by providing ‘appropriate treatment’ in the ‘least restrictive’ setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment.” Id. at 24-25, 101 S.Ct. at 1543-44. The Court also specified under what conditions statutory language would create substantive rights and obligations. “Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Id. at 24, 101 S.Ct. at 1543. The Court analogized: “Legislation enacted pursuant to the spending power,” such as the AAA, “is much in the nature of a contract ... in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’, ... [t]here can ... be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Id. at 17, 101 S.Ct. at 1540. The crucial inquiry, therefore, is “not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.” Id. at 25, 101 S.Ct. at 1544. The Court found that the statutory language in Pennhurst fell well short of providing clear notice to the State that they, by accepting the funds under the Act, would be obligated to provide “adequate treatment” as imagined by the plaintiffs. “[It] strains credulity to argue that participating States should" }, { "docid": "13303715", "title": "", "text": "of money given to state and local governments, see South Dakota v. Dole, 483 U.S. 203, 206-207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), but those strings aren’t laivs. See generally David E. Engdahl, The Spending Power, 44 Duke L.J. 1, 71 (October 1994) (“What makes [federal funding] conditions obligatory is that essence as contract, wholly apart from the circumstance that they happen to be spelled out in a statute or an agency rule. Although articulated in a statute or rule, they have no force as ‘law’; their only force is contractual. Consequently, they are not among the ‘Laws of the United States ... made in Pursuance’ of the Constitution, to which the Supremacy Clause applies.”). Indeed, Congress’s Spending Clause power is comprehensible only by analogy to principles of contract law. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (“[LJegislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States • agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”); cf. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610-11 (8th Cir.1999) (“Title IX operates to condition an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds. The fact that title IX was enacted pursuant to Congress’s spending power is evidence that it prohibits discriminatory acts only by grant recipients. Several circuits have held that because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX.”) (internal punctuation and citations omitted). In enacting § 666, however, Congress did not contract with states or local governments. Neither did Congress bestow gifts of funds upon those governments. Rather, Congress passed a federal criminal statute designed to punish conduct that falls within the domain of traditional state concerns" }, { "docid": "10430052", "title": "", "text": "expressly in terms of “unintentional violations” or “intentional discrimination.” In Pennhurst, the Court was presented with the issue of whether Section 6010 of the Developmentally Disabled Assistance and Bill of Rights Act (42 U.S.C. § 6010) created in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment. After concluding that the Act was enacted solely pursuant to the Spending Clause, the Court reasoned: Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. Unlike legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981) (emphasis added). Because Franklin itself clearly holds that Title IX satisfies the Pennhurst notice requirement in placing a duty on school boards to counteract known hostile environment sexual harassment of students, so that the school board voluntarily and knowingly accepted the terms of the “contract,” and that a board’s failure to perform its duty is an “intentional” violation of Title IX, it is difficult to decipher exactly what the Court meant by the Pennhurst passage. Perhaps the Franklin Court’s discussion of Penn-hurst was only intended to put Congress and other concerned parties on" }, { "docid": "20776664", "title": "", "text": "this rigorous approach reflects concerns about federalism and reinforces the principle that Congress must clearly express its “intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (requiring that spending statutes provide “clear notice” of state obligations). Pennhurst analogized cooperative Spending Clause legislation to a contract between the federal government and willing states: “[Legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” 451 U.S. at 17, 101 S.Ct. 1531. As such, the legitimacy of spending-power legislation “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Id. There cannot be knowing acceptance “if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id.; see also Arlington Cent. Sch. Dist., 548 U.S. at 296, 126 S.Ct. 2455. The Supreme Court has repeatedly reaffirmed this understanding, most recently in National Federation of Independent Business v. Sebelius, 132 S.Ct. at 2601-02. Accordingly, “where a statute by its terms grants no private rights to any identifiable class,” Gonzaga Univ., 536 U.S. at 284, 122 S.Ct. 2268 (internal quotation marks omitted), it cannot be construed to confer an individual right enforceable under § 1983, id. at 284-85,122 S.Ct. 2268. Instead, to create judicially enforceable private rights, the statute “ ‘must be phrased in terms of the persons benefited,’ ” with “ ‘an unmistakable focus on the benefited class.’ ” Id. (quoting Cannon v. Univ. of Chi, 441 U.S. 677, 691, 692 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). It must “confer[ ] entitlements ‘sufficiently specific and definite to qualify as enforceable rights.’ ” Id. at 280, 122 S.Ct. 2268 (quoting Wright v. Roanoke Redev. & Nous." }, { "docid": "12481886", "title": "", "text": "retrospective application of the HCPA’s attorneys’ fee provision does not encroach upon the powers of the judiciary and thus does not violate the separation of powers doctrine. 2. Spending Power Defendants state that the EAHCA is a funding statute enacted pursuant to the spending clause of the United States Constitution, U.S. Const. Art. 1, § 8. Defendants take the position that legislation passed pursuant to the spending clause is designed to function in much the same way as a contract: Participants in the government program agree to comply with conditions set forth in the legislation in exchange for federal funding. Defendants argue that the HCPA exceeds Congress’ spending power because it impairs the voluntary “contract” implicit in the EAHCA by retroactively imposing conditions upon the receipt of federal funds. In support of this position, defendants rely upon Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). In Pennhurst the Court found that Congress acted pursuant to the spending power when it enacted the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. Id. at 18, 101 S.Ct. at 1540. The Court stated: Unlike legislation enacted under Section 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract. In return for federal funds, the states agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a state is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the states to exercise their choice knowingly, cognizant of the consequences of their participation. Id. at 17. Contrary to defendants’ arguments, Pennhurst does not address whether Congress may retroactively condition the receipt of" }, { "docid": "18989937", "title": "", "text": "determination,” and both parties have had a chance to address the issue. See id. at 849 (internal quotations omitted). In Pennhurst, the Supreme Court held that when Congress “intends to impose a condition on the grant of federal monies, it must do so unambiguously.” 451 U.S. at 17, 101 S.Ct. 1531. This rule, known as the Pennhurst “clear statement rule,” is based on the rationale that legislation enacted under Congress’s spending power is in the nature of a contract: [I]n return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Ibid, (citations omitted). The “crucial inquiry” in this analysis is “whether Congress spoke so clearly that [the court] can fairly say that the State could make an informed choice.” Id. at 25, 101 S.Ct. 1531. Applying this rule, the Court in Penn-hurst overturned a lower court ruling that would have required Pennsylvania to cover the cost of treatment for disabled individuals in “the least restrictive environment” as a condition of receiving federal funds under the Developmentally Disabled Assistance and Bill of Rights Act. Although the case dealt with the imposition of an affirmative obligation, the clear statement rule has been applied to negative obligations as well. See Barnes v. Gorman, 536 U.S. 181, 186 n. 1, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)); Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir.2003); United States v. Miami Univ., 294 F.3d 797, 808-09 (6th Cir.2002). The rule that has emerged is that if Congress wishes to condition funding upon a State’s promise to refrain from doing something it would" }, { "docid": "23680011", "title": "", "text": "of “government” did not clearly convey Congress’s intent to impose a condition of individual liability pursuant to the Spending Clause); Sossamon, 560 F.3d at 329 (“Congressional enactments pursuant to the Spending Clause do not themselves impose direct liability on a non-party to the contract between the state and the federal government.”); Smith, 502 F.3d at 1273-74 (drawing an analogy to the court’s Title IX jurisprudence, which does not permit suits against individuals because Title IX was enacted pursuant to the Spending Clause). Moreover, when Congress desires to impose a condition under the Spending Clause, it is Congress’s burden to affirmatively impose the condition in clear and unmistakable statutory terms. See, e.g., Pennhurst State Sch. & Hosp., 451 U.S. at 17, 101 S.Ct. 1531. In Pennhurst State School & Hospital, the Supreme Court stated that [t]he legitimacy of Congress’s power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” ... There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Id. (internal citations omitted). Here, the Magistrate Judge correctly concluded that RLUIPA does not permit an action against Defendants in their individual capacities. Pennsylvania, not Defendants, was the direct recipient of any federal funds. Thus, RLUIPA cannot impose direct liability on Defendants, who were not parties to the contract created between Pennsylvania and the federal government. Further, RLUIPA does not unambiguously signal Congress’s intent to impose a condition of individual liability. The Supreme Court’s recent decision in Sossamon v. Texas — which reviewed the related issue of whether States, by accepting federal funds, waived sovereign immunity under RLUIPA — is particularly instructive. In Sossamon, the Court held that States did not consent to waive their sovereign immunity with respect to RLUIPA suits for damages against State employees in their official capacities. See 131 S.Ct. at 1655. The Court reasoned that RLUIPA’s authorization of “" }, { "docid": "570276", "title": "", "text": "of governmental regulatory activity in the 1930s and thereafter, which provides precedents strongly supporting the government’s right, when undertaking a regulatory scheme, to alter the expectations and obligations of private parties. See, e.g., FHA v. The Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958); Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). To the extent that such regulation is considered to be “retroactive,” these cases nonetheless uphold its constitutionality- Rejecting these precedents, the AHA instead relies heavily upon certain language in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981): [Ljegislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. 451 U.S. at 17, 101 S.Ct. at 1539 (citations omitted). But Pennhurst is quite different from the case at hand. Pennhurst addressed the question whether a new federal statute — the “bill of rights” provision of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010(1) and (2), which involved federal grants to assist participating states create programs for the developmentally disabled, conferred an enforceable substantive right upon mentally retarded persons. Id. at 5, 101 S.Ct. at 1534. The case before us, on the other hand, involves not whether enforceable obligations were created by the Hill-Burton Act — that is conceded — but rather the scope and interpretation of those obligations. Again, this question is one more of" }, { "docid": "23363845", "title": "", "text": "Choate, 469 U.S. at 295, 105 S.Ct. 712 (noting that Senator Humphrey, who introduced the measure, stated that “we can no longer tolerate the invisibility of the handicapped in America” (quoting 118 Cong. Rec. 525-26 (1972))). Moreover, the standard of deliberate indifference, while accommodating the RA’s and the ADA’s function in protecting the disabled, is also consistent with contract principles at play when legislation is passed via the Spending Clause. See Liese, 701 F.3d at 347. The RA and the ADA were enacted under Congress’s Spending Clause power; legislation that is enacted under this power “is much in the nature of a contract” between the federal government and recipients of federal funds. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). “Just as a valid contract requires offer and acceptance of its terms, the legitimacy of Congress’ power to legislate under the spending power rests on whether the recipient voluntarily and knowingly accepts the terms of the contract.’ ” Barnes, 536 U.S. at 186, 122 S.Ct. 2097 (alterations omitted) (quoting Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). The Supreme Court has thus reasoned that a recipient of federal funding, such as the School District here, may be held liable for money damages only when it is on notice by statute that it has violated the law. Id. (discussing monetary damages under Title VI); Gebser, 524 U.S. at 287, 118 S.Ct. 1989 (discussing monetary damages under Title IX). Because the deliberate indifference standard requires knowledge, this standard satisfies contract law principles while still protecting the disabled. As the Eleventh Circuit explained, The deliberate indifference standard best reflects the purposes of § 504 while unambiguously providing the notice-and-opportunity requirements of Spending Clause legislation. A lower standard would fail to provide the notice-and-opportunity requirements to RA defendants, while a higher standard—requiring discriminatory animus—would run counter to congressional intent as it would inhibit § 504’s ability to reach knowing discrimination in the absence of animus. Líese, 701 F.3d at 348. C. Grant of Summary Judgment We now turn to the merits of the appeal:" }, { "docid": "20776663", "title": "", "text": "122 S.Ct. 2268. Three factors help determine whether a federal statute creates private rights enforceable under § 1983: (1) “Congress must have intended that the provision in question benefit the plaintiff’; (2) the asserted right must not be “so vague and amorphous that its enforcement would strain judicial competence”; and (3) “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (internal quotation marks omitted). These factors are meant to set the bar high; nothing “short of an unambiguously conferred right [will] support a cause of action brought under § 1983.” Gonzaga Univ., 536 U.S. at 283, 122 S.Ct. 2268. “[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” Id. at 286, 122 S.Ct. 2268. In the context of legislation adopted under the spending power, this rigorous approach reflects concerns about federalism and reinforces the principle that Congress must clearly express its “intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (requiring that spending statutes provide “clear notice” of state obligations). Pennhurst analogized cooperative Spending Clause legislation to a contract between the federal government and willing states: “[Legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” 451 U.S. at 17, 101 S.Ct. 1531. As such, the legitimacy of spending-power legislation “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Id. There cannot be knowing acceptance “if a State is" }, { "docid": "18989936", "title": "", "text": "funding for the City’s Kinsman Road improvement project. D. Last, the City contends that the “clear statement rule” laid down in Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), precludes the FHWA from, withdrawing federal funds. The City posits that the FHWA’s regulations violate Penn-hurst because they did not put the State of Ohio on notice that in accepting federal funds it was also accepting limitations on its right to impose various contract requirements. The FHWA insists that the City has waived this argument by failing to raise it in the lower court. Although “[t]he general rule is that an appellate court will not entertain an argument based upon a theory not litigated below,” Hutton v. United States, 501 F.2d 1055, 1062 (6th Cir.1974), an exception exists “[w]hen a new argument presents a question of pure law,” United States v. Butler, 207 F.3d 839, 850 (6th Cir.2000). That exception applies here. The Pennhurst argument presents a question of pure law requiring “no new or amplified factual determination,” and both parties have had a chance to address the issue. See id. at 849 (internal quotations omitted). In Pennhurst, the Supreme Court held that when Congress “intends to impose a condition on the grant of federal monies, it must do so unambiguously.” 451 U.S. at 17, 101 S.Ct. 1531. This rule, known as the Pennhurst “clear statement rule,” is based on the rationale that legislation enacted under Congress’s spending power is in the nature of a contract: [I]n return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Ibid, (citations omitted). The “crucial inquiry” in this analysis is “whether Congress spoke so clearly that [the court] can fairly say that the State could make an informed choice.” Id." }, { "docid": "9873941", "title": "", "text": "conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.\" Id. (internal quotation marks and citations omitted). Fourth, no condition attached to receipt of federal funds may violate other provisions of the Constitution. Id. at 208, 107 S.Ct. at 2796. Georgia does not dispute that RLUIPA serves the general welfare, so we limit our discussion to the three remaining issues. 1. The Conditions of RLUIPA Are Unambiguous. Congress may condition the expenditures of federal funds on the furtherance of federal objectives, but when the recipient of those funds is a state the conditions imposed by Congress must be unambiguous: [L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the \"contract.\" There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981) (internal citations omitted). Georgia argues that the conditions of RLUIPA are ambiguous, contrary to Penrthurst, in four ways: (1) RLUIPA does not put states on clear notice that, by accepting federal funds, they waive immunity to suits brought under the act; (2) RLUIPA does not clearly inform states that they have an option whether to accept or reject federal funds; (3) federal grants do not mention the requirements that RLTJIPA will impose on states accepting the grants; and (4) the standard of least restrictive means is too ambiguous to allow a state an informed choice. These arguments fail. Congress unambiguously required states to waive their sovereign immunity from suits filed by prisoners to enforce RLUIPA. Section 2000cc-2(a) provides that \"[a] person" }, { "docid": "3432320", "title": "", "text": "statutory construction. First, we must try to give full effect to each of the statutory provisions at issue. “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). Second, because the purported partial repeal of § 209(b) would alter the conditions under which federal monies were granted to the states, Congress can only effect such a repeal through a clear and plain statement. As the Supreme Court explained in Pennhurst State School v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981): [Legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. (Citations omitted.) “The rule of statutory construction invoked in Pennhurst [is] ... a tool with which to divine the meaning of otherwise ambiguous statutory intent.” EEOC v. Wyoming, 460 U.S. 226, 244 n. 18,103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d 18 (1983). Obviously, the states must not be left to guess at federal intentions in their own budgetary planning process. Here, plaintiffs’ reading of section 303(e) would dramatically change the terms of the Medicaid “contract” between the federal government and the states. If Congress intended to effect this change, it needed to “speak with a clear voice.” Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1540. Finally, under Chevron U.S.A., Inc. v. Natural Resources Defense Council," }, { "docid": "3170708", "title": "", "text": "relief available to Title VI plaintiffs. Since Title IX is based on Title VI and is to be interpreted as Title VI is interpreted, the court assumes that Title IX was enacted pursuant to the Spending. Clause and has the same limits on relief as Title VI. Plaintiff has not argued to the contrary. . The court does not mean to indicate, however, that an actionable hostile environment does not exist unless the environment is so bad that the victim feels compelled to quit the institution. . Agency principles are inapplicable to the relationship between the school district and its students. . \"The school's failure to stop the harassment ... created an environment abusive to JANE.” Opp.Mem. at 4. . Indeed, it would seem that that is all that is required by Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 11-18, 101 S.Ct. 1531, 1536-40, 67 L.Ed.2d 694, 707-08 (1981) (Pennhurst I), one of the primary cases relied on by both the Guardians Ass'n and Franklin Courts. In that case, the Court analogized obligations imposed under the Spending Clause to contractual obligations and stated: \"The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the \"contract.” [Citations]. There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” course, this is a motion to dismiss and we accept the facts that are alleged in the complaint. Whether in fact there will be sufficient evidence of an actual intent to discriminate must await the outcome of a motion for summary judgment. . See, e.g., the House Report regarding Title IX, which states: \"One of the single most important pieces of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964 which prohibits discrimination in private employment based on race, color, religion," }, { "docid": "23680010", "title": "", "text": "conditions on the receipt of federal funds and essentially create a contract between the federal government and the State recipient. Smith, 502 F.3d at 1273; see also Nelson, 570 F.3d at 887 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). As a result, the statute may, as a condition of the funding, “subject the grant recipient to liability in a private cause of action, but the spending power cannot be used to subject individual defendants, such as state employees, to individual liability in a private cause of action.” Smith, 502 F.3d at 1274; see also Sossamon, 560 F.3d at 329. Thus, non-recipients of the funds, including individuals who are state officials, generally cannot be subject to private liability for monetary damages. See, e.g., Nelson, 570 F.3d at 888-89 (stating that permitting suits against government officials in their individual capacity would “raise serious questions regarding whether Congress had exceeded its authority under the Spending Clause”); Rendelman, 569 F.3d at 189 (concluding that the RLUIPA’s definition of “government” did not clearly convey Congress’s intent to impose a condition of individual liability pursuant to the Spending Clause); Sossamon, 560 F.3d at 329 (“Congressional enactments pursuant to the Spending Clause do not themselves impose direct liability on a non-party to the contract between the state and the federal government.”); Smith, 502 F.3d at 1273-74 (drawing an analogy to the court’s Title IX jurisprudence, which does not permit suits against individuals because Title IX was enacted pursuant to the Spending Clause). Moreover, when Congress desires to impose a condition under the Spending Clause, it is Congress’s burden to affirmatively impose the condition in clear and unmistakable statutory terms. See, e.g., Pennhurst State Sch. & Hosp., 451 U.S. at 17, 101 S.Ct. 1531. In Pennhurst State School & Hospital, the Supreme Court stated that [t]he legitimacy of Congress’s power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” ... There can, of course, be no knowing acceptance if a State is unaware of" }, { "docid": "6239641", "title": "", "text": "a State to regulate in a particular way, [and] influenc[e] a State’s policy choices.’ ” Id. at 2601-02 (quoting New York, 505 U.S. at 166, 112 S.Ct. 2408) (alterations in original). “The conditions imposed by Congress ensure that the funds are used by the States to ‘provide for the ... general Welfare’ in the manner Congress intended.” Id. at 2602 (quoting U.S. Const., art. I, § 8, cl. 1). “At the same time,” the Chief Justice continued, the Court’s “cases have recognized limits on Congress’s power under the Spending Clause to secure state compliance with federal objectives.” Id. The Court has “repeatedly characterized ... Spending Clause legislation as ‘much in the nature of a contract.’ ” Id. (quoting Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981))). “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the State voluntarily and knowingly accepts the terms of the contract.’ ” Id. (quoting Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531) (some internal quotation marks omitted). “Congress may use its spending power to create incentives for States to act in accordance with federal policies,” the Chief Justice concluded, “[b]ut when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” Id. (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)). In NFIB, the Court struck down — as in excess of the Congress’ authority under the Spending Clause — a provision of the Affordable Care Act (ACA) that expanded the scope of the Medicaid program arid increased the number of individuals the States had to cover. Although the Act increased federal funding to cover much of the States’ costs in expanding Medicaid coverage, it also provided that, if a State did not comply with the Act’s new coverage requirements, it could lose not only the new federal funding, but all of its existing federal Medicaid funds. NFIB, 132 S.Ct. at 2582. The Chief Justice’s" } ]

[ { "docid": "22743495", "title": "", "text": "was seized in defendant’s office under a search warrant, dated June 17, and the other two under a like warrant dated July 22, 1918,-each of which was issued by a United States Commissioner on the affidavit of an agent of the Department of Justice. It is certified that it was averred in the first affidavit that there were in Gouled’s office “certain property, to wit: certain contracts of the said Felix Gouled with S. Lavihsky [which] were used as a means of committing a felony, to wit: ... as means for the bribery of a certain office? of the United States.” It is also certified that the second, affidavit declared that Gouled had at his office “certain letters, papers, documents and writings which ... relate to, concern and have been used in the commission of a felony, to wit: -a conspiracy to defraud the United States.” Neither the affidavits nor the warrants are given in full in the certificate, but no exception was taken to the sufficiency of either. - After the seizure of the papers, a joint indictment was returned; as stated, against Gouled, Vaughan and the attorney, and before trial a motion,was made by Gouled, for a return of the papers seized under the search warrants, which was denied, and when the motion was renewed at the trial, but before any evidence was introduced, it was again , denied. The denial of this motion is not assigned as error. The contract of the defendant with Steinthal, which-was seized under the warrant, was not offered in evidence ~but a duplicate original, .obtained from Steinthal, was admitted over the objection that the possession of the seized original must have suggested the existence and the obtaining of the counterpart, and that therefore the use of it in evidence would violate the rights of the defendant under the Fourth or Fifth Amendment. Silverthorne Lumber Co. v. United States, 251 U. S. 385. The unsigned form of contract and the attorney’s bill were offered and also admitted over the same constitutional objection. There is no statement in the certificate of the contents of" } ]

[ { "docid": "13888060", "title": "", "text": "which are material and properly offered in evidence, by saying that this rule would not apply to an application for return of papers seized seasonably made. In Silverthorne Lumber Company v. United States, 1919, 251 U.S. 391, 40 S. Ct. 182, 64 L.Ed. 319, the court referred to the same general rule of practice as did the court in Gouled v. United States, 1920, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. In the Gouled case the court pointed out that the rule was “ * * only a rule of procedure and therefore it is not applied as a hard and fast formula to every case, regardless of its special circumstances * * * A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.” (255 U.S. at page 313, 41 S.Ct. at page 266). In Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, the court again referred to the above mentioned rule of practice, citing the Gouled case with respect to not allowing the rule to prevail for a technical reason over a constitutional right. The four cases mentioned above and set forth in the Notes on Rule 41(e) as stating the existing law and practice make it quite clear that delays in criminal trials, by untimely objections to evidence allegedly obtained by illegal means, are to be avoided. Significantly however, they do not indicate the precise nature of the procedure to be used for a pretrial or pre-indictment challenge to the evidence. The cases mention applications for return, motions, and petitions filed in the cause, only in their discussion of the facts of their case. . Where the moving party seeks his relief before indictment or after indictment by equitable proceedings, rather than under Rule 41(e), it would seem that the court would have two alternatives, neither of which would do violence to the moving party’s rights: — (1) Treat the equity proceeding as a motion under Rule 41(e) and try it as such, (2) Dismiss the equity proceedings and permit a motion" }, { "docid": "7127097", "title": "", "text": "178 F.2d 962, certiorari denied, 1950, 339 U.S. 929, 70 S.Ct. 624, 94 L.Ed. 1350. . Fed.R.Crim.P. rule 41(e), 18 U.S.O. . Circuit Judge Learned Hand, writing for the Second Circuit, in Keen v. Overseas Tankship Corp., 1952, 194 F.2d 515, certiorari denied, 1952, 343 U.S. 908, 72 S.Ct. 1061, 96 L.Ed. 1363, had this to say on the point: “Moreover, the plaintiff’s failure later to repeat the objection, or to conform literally to Rule 51, was not a ‘waiver’ of the ruling against him [citing cases]; he had taken his position, had lost, and he was free thereafter to win a verdict if he could within the narrower borders of the case that the judge had laid down for him. Nothing goes further to disturb the proper atmosphere of a trial than reiterated insistence upon a position which the judge has once considered and decided. The notion is wholly untenable that in order to protect himself against an imputed surrender, a party must reassert what has been overruled every time the occasion comes up again.” Id., 194 F.2d at page 519. Circuit Judge Kalodner, in the opinion for the Third Circuit in Green v. Reading Co., 1950, 183 F.2d 716, quoting from the opinion in Moreau v. Pennsylvania R. Co., 3 Cir., 1948, 166 F.2d 543, 545, said: “Counsel must make his points clearly so that the trial judge may see what they are and if he believes they are right, follow them. But he is not required to indulge in reiterative insistence in order to preserve his client’s rights.” . See Cogen v. United States, 1929, 278 U.S. 221, 223, 49 S.Ct. 118, 73 L.Ed. 275. . Northern Pacific Railroad v. Urlin, 1895, 158 U.S. 271, 15 S.Ct. 840, 39 L.Ed. 977; Brown v. Tarkington, 1865, 3 Wall. 377, 70 U.S. 377, 18 L.Ed. 255; Ray v. Smith, 1873, 17 Wall. 411, 84 U.S. 411, 21 L.Ed. 666. . Brown v. Tarkington, 1865, 3 Wall. 377, 70 U.S. 377, 18 L.Ed. 255. . Fed.R.Crim.P. rule 51. . Gatewood v. United States, D.C.Cir., 1953, 93 U.S.App.D.C. 226, 230, 209" }, { "docid": "1428657", "title": "", "text": "the course of the criminal case. Cogen v. United States, 1929, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. But presumably if tbe order of the district court was a “final decision” when rendered, it did not lose that characteristic from the fact that an indictment was subsequently handed down. Cf. United States v. Poller, 2 Cir., 1930, 43 F.2d 911. And though the finding of a true bill by the grand jury defeated one of the objects of petitioner in his motion to suppress, the petition did not thereby become entirely moot, for petitioner still remained interested in the relief sought in so far as it might be directed to the suppression of the evidence at the trial. Probably, therefore, as a technical matter, the present appeal should not be dismissed as moot. We do not dwell upon the point at greater length, because whichever of the two dispositions we chose to make of this appeal, the practical effect would be the same; there would be no determination whether the evidence in question should be excluded at the trial, but that question would be left open for determination in the course of the pending criminal proceeding. We may add that, even accepting appellant’s contentions to the full, we could in no event vacate the order with a direction to the district court to enter an order suppressing the evidence at the trial. The reason for that is that the district court entered its order of denial after hearing petitioner’s witnesses only, ■ deeming it unnecessary to hear the witnesses which the United States attorney was prepared to present. If it be assumed for the moment that evidence disclosed to the Treasury officials on the faith' of the announced voluntary disclosure policy, and in compliance with its conditions, should be excluded from evidence in a subsequent criminal trial, it would seem that the taxpayer would have to satisfy the court that he made a voluntary, good faith disclosure of all data necessary to a correct computation of his income tax deficiencies, and that he made such disclosures before an" }, { "docid": "4059892", "title": "", "text": "noted in Escobedo that “[a]l-though there is testimony in the record that petitioner and his lawyer had previously discussed what petitioner should do in the event of interrogation, there is no evidence that they discussed what petitioner should, or could, do in the face of a false accusation that he had fired the fatal bullets.” 378 U.S. at 485 n. 5, 84 S.Ct. at 1762. . United States v. Braverman, 376 F.2d 249 (2d Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 155, 19 L.Ed.2d 182 (1967), is different. In that case Braverman attempted to call his lawyer before interrogation but could not reach him. As the court stated, “In contrast to the Escobedo case, the prosecution here did nothing to interfere with Braverman’s right or access to counsel.” 376 F.2d at 252. . The Supreme Court of Connecticut stated, “No error is assigned in the admission into evidence, before the jury, of testimony by any of the police officers concerning the questioning of the defendant. Exceptions were taken only to rulings on such testimony at the hearing on the motion to suppress.” State v. Magoon, supra at 17, 240 A.2d at 857. However, the motion to suppress, heard during the course of the trial in the absence of the jury, was sufficient to save the point. See Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37, 40-42 (1955); United States ex rel. De Negris v. Menser, 247 F.Supp. 826 (D.Conn.1965), aff’d, 360 F.2d 199 (2d Cir. 1966); cf. Douglas v. Alabama, 380 U.S. 415, 422-423, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). “[Rjeiterated insistence upon a position which the judge has once considered and decided” is not necessary. Keen v. Overseas Tankship Corp., 194 F.2d 515, 519 (2d Cir. 1952), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952). . See generally Note, Harmless Constitutional Error, 20 Stan.L.Rev. 83 (1967)." }, { "docid": "22626727", "title": "", "text": "petitioners in the 1952 grand jury proceeding would be used in the future course of the case. The court stated as its reasons: “The United States Attorney has sworn that this material will not be used in the future course of this case, and at this stage of the proceedings, that oath is sufficient. The granting' of defendants’ motion to suppress at this time would necessitate an investigation of all of the Government’s evidence. Such an investigation would entail a great deal of useless effort because much of this material, which has been collected since 1948, will not be used at the trial.” United States v. Giglio, 16 F. R. D., at 270, 271. “Q. In whose handwriting are the entries on Government’s Exhibit 61-B for identification? I think you said it is the stub book. A. To the best of my recollection, those are Mr. Cerone’s. “Q. How do you spell Cerone? A. C-e-r-o-n-e. “Q. He was one of your employees, Mr. Roth? A. No, he was a bookkeeper employed by Tavern Fruit Juice. “Q. Would the same be true with regard to the check, the face of the check, payee of the check? A. The payee of the check and the amount? “Q. The handwriting is what I am asking about. A. The handwriting, that looks like William Giglio’s handwriting. “Q. The maker of the check [for] the $15,000? A. Yes, the signature. “Q. They look like his handwriting, do they? A. Yes, sir. “Q. And. this 61-B for identification, you have told me that that looked like the printing or the writing of Mr. Cerone, did you not? A. Yes, sir.” Though at times, in colloquies with the court, counsel for petitioners was equivocal, the following is typical of the position taken by him: Counsel: “I really don’t see how I can get adjudicated the question of the illegality of the indictment before you without calling all these people who made affidavits before Judge Palmieri. Now, that obviously would be, well, very disruptive of your trial. I would never think of doing it if ... it didn’t" }, { "docid": "13971870", "title": "", "text": "that this fact contributed to the result reached. In this non-capital case, where the record affirmatively shows that no prejudice resulted from the plea of not guilty without counsel at arraignment, we cannot say that a reversal is required. See McGill v. United States, 121 U.S.App.D.C. -, 348 F.2d 791 (1965). Compare Jackson v. United States, 122 U.S.App.D.C. -, -, 351 F.2d 821, 823 (1965). Since “we can find no basis in the record for an informed speculation” that appellant’s rights were prejudicially affected, the conviction must stand. Shelton v. United States, supra, 120 U.S.App.D.C. at 66, 343 F.2d at 348. II A trial court, of course, is not bound by preliminary denial of a motion to suppress. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929); DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). “If the motion is denied, the objection to the admissibiity as evidence is usually renewed when the paper is offered at the trial. And, although the preliminary motion was denied, the objection made at the trial to the admission of the evidence may be sustained.” Cogen v. United States, supra, 278 U.S. at 224, 49 S.Ct. at 119. See also Waldron v. United States, 95 U.S.App.D.C. 66, 70, 219 F.2d 37, 41 (1955). This is true because “the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light.” DiBella v. United States, supra, 369 U.S. at 129, 82 S.Ct. at 659. The trial court here, after stating it was bound by the pre-trial ruling, nevertheless proceeded to hear the evidence. Compare Jennings v. United States, 101 U.S.App.D.C. 198, 199, 247 F.2d 784, 785 (1957). The evidence taken on the motion to suppress and at trial clearly demonstrates that the motion to suppress was without merit. There the matter ends. Affirmed. . There is no suggestion here that the entry of the not guilty plea precluded appellant from filing, and having heard on their merits, pre-trial motions of any kind. See Rule 12(b)" }, { "docid": "22626698", "title": "", "text": "in the 1952 grand jury proceeding and all evidence derived therefrom. These motions were submitted to the court upon affidavits. After considering them and hearing extensive arguments of counsel, the court found that the affidavits left no room for an inference that the Government had used illegally obtained materials in securing the present indictment, that petitioners’ claim did not have the “solidity” required to justify the holding of such a hearing, and that to do so “on the basis of the showing made by the defendants and the Government would indeed be subordinating ‘the need for rigorous administration of justice to undue solicitude for potential . . . disobedience of the law by the law’s officers.’ [Nardone v. United States, 308 U. S. 338, 342.]” United States v. Giglio, 16 F. R. D. 268, 270. The court declined to hold the requested hearing and denied the motion to inspect the grand jury minutes and the motion to dismiss the indictment. The court also denied the motion to suppress, but in that connection said: “Of course, if dur ing the course of the trial defendants have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.” United States v. Giglio, supra, at 271. Pursuant to order of the court the Government produced for inspection by petitioners, before the trial, the corporate records delivered by Giglio to the 1952 grand jury in compliance with its subpoena, the documents which had been abandoned by petitioners and examined by the Government, and the documents relating to petitioners’ businesses obtained from the New Jersey receiver. At the beginning of the trial petitioners renewed the above-mentioned motions which were again denied. In the course of the trial the Government furnished petitioners a transcript of their testimony before the 1952 grand jury. I. As stated, petitioners first contend that they were deprived of due process by the refusal of the court to conduct the requested full-dress hearing to enable them to attempt" }, { "docid": "22626711", "title": "", "text": "would agree) said that he had “no objection” to those exhibits, and thus consciously and intentionally waived apy objection to their receipt in evidence. III. Petitioners argue that they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by materials obtained from them in the 1952 grand jury proceedings was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. It cannot be doubted that petitioners had that right in the circumstances of this case, Nardone v. United States, 308 U. S. 338, 341, 342, and the Government does not otherwise contend. Moreover, as earlier stated, the District Court, in ruling the pretrial motion to suppress, expressly left this subject open to inquiry at the trial. United States v. Giglio, 16 F. R. D., at 271. The contention is wholly factual, and a thorough study of the record discloses that petitioners were accorded that right. The court did not sustain objections to petitioners’ examination or cross-examination of witnesses attempting to show derivative use at the trial of any evidence produced by petitioners before the 1952 grand jury, but only sustained objections to questions attacking the procedural validity of the indictment. At no time did counsel for petitioners point specifically to any evidence offered at the trial which they claimed was derived from materials furnished by petitioners before the 1952 grand jury. Near the close of the Government's case, the court stated that, so far as he could detect, there had been no direct or derivative use of any tainted evidence by the Government at the trial, and he requested counsel for petitioners, on two occasions, to submit a memorandum of any evidence offered by the Government which he believed was obtained through leads or clues from materials produced by petitioners before the 1952 grand jury. No such memorandum was ever furnished. Petitioners point to three instances where they say the trial court denied them the right to examine witnesses about the source of evidence offered by" }, { "docid": "22626709", "title": "", "text": "States, supra, at 312, 313. It will be remembered that the court in passing on the motion to suppress said, respect ing the affidavit of the United States Attorney, that “at this stage of the proceedings that oath is sufficient” (United States v. Giglio, 16 F. R. D., at 271), but he expressly left the matter of suppression of evidence to the trial court and admonished petitioners that if during the course of the trial they “have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.” Id., at 271. The record shows that petitioners’ counsel was fully aware of all this when Exhibits 61-A and 61-B were offered in evidence, and when, after using them for his purposes, he affirmatively said he had “no objection” to them. The Government argues that, had its attention been called to the fact that these particular photostatic copies had been exhibits before the 1952 grand jury by an objection to them, it could and would have produced other copies obtained from other sources before the 1952 grand jury proceeding was commenced. In that connection it has filed here what is said to be a transcript of a hearing-accorded to Lawn at his request on May 12, 1952, which it says contains photostatic copies of the check and check stub in question voluntarily produced by Lawn. Lawn has moved to strike that transcript and the portions of the Government’s brief relating thereto. That motion must be sustained as we must look only to the certified record in deciding questions presented. McClellan v. Carland, 217 U. S. 268. We believe that the facts from the certified record, above discussed, show that petitioners’ counsel, after using the check and check stub to make his point before the jury that the check was an innocent loan from Giglio and not an incriminatory payment by Tavern in the guise of a legal fee, wisely (as, we believe, every impartial and experienced trial lawyer" }, { "docid": "22403925", "title": "", "text": "That factor underlay the discussion of this category of orders as appealable in Cogen v. United States, 278 U. S. 221, 225-227. The “essential character and the circumstances under which it is made” determine whether a motion is an independent proceeding or merely a step in the criminal case. Id., at 225; cf. United States v. Wallace & Tiernan Co., 336 U. S. 793, 801-803. We think that a contemporary illustration of this category is United States v. Ponder, 238 F. 2d 825, where the suppression order related to a plenary proceeding that had been brought in order to impound election records for investigation by the Department of Justice and the grand jury. See especially United States v. Sanges, 144 U. S. 310; Cross v. United States, 145 U. S. 571; cf. Kepner v. United States, 195 U. S. 100, 124-134. United States v. Rosenwasser, 145 F. 2d 1015 (C. A. 9th Cir.) ; cf. United States v. Janitz, 161 F. 2d 19 (C. A. 3d Cir.) (order made at trial); United States v. Williams, 227 F. 2d 149 (C. A. 4th Cir.) (motion made before indictment); see United States v. One 1946 Plymouth Sedan, 167 F. 2d 3, 8-9 (C. A. 7th Cir.). The court below has held a pre-trial order suppressing wiretap evidence to be interlocutory, distinguishing its ruling in the Cefaratti case on the basis that the prohibition of Rule 41 (e) against reviving the issue of admissibility at the trial does not apply to wiretap evidence. United States v. Stephenson, 96 U. S. App. D. C. 44, 223 F. 2d 336. We express no opinion as to this distinction, in view of our disposition of the present case. An appeal by the United States was treated on the merits without discussion of appealability, where the move for return of papers was made after indictment, in United States v. Kirschenblatt, 16 F. 2d 202 (C. A. 2d Cir.). That proceeding had elements of independent character because of its statutory context under the National Prohibition Act. Likewise, United States v. Ponder, 238 F. 2d 825 (C. A. 4th" }, { "docid": "7628733", "title": "", "text": "were the stolen “Chicago” films. The list came into the government’s hands through the informer Meade, who saw it attached to a box of films that Lavin was inventorying, and “suspected” it pertained to the films from Chicago. Appellant alleges that the exhibit was illegally seized without a warrant in violation of the fourth amendment, that it was stolen by Meade, and that Meade’s actions should be attributable to the government because he was acting as an informer for the government at the time. Appellant moved to suppress the list in a pretrial motion, but the motion was denied. The government argues that appellant failed to preserve the objection. “It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial.” Lawn v. United States, 355 U.S. 339, 353, 78 S.Ct. 311, 319, 2 L.Ed.2d 321 (1958). The issue here, however, is whether appellant’s counsel thereafter “consciously and intentionally waived any objection to their receipt in evidence.” Id. at 355, 78 S.Ct. at 320. Pretrial objections have been waived by a defendant’s counsel who affirmatively stated “no objection” to the introduction of evidence he previously sought to have suppressed, United States v. Mireles, 570 F.2d 1287, 1290 (5th Cir. 1978); United States v. Adams, 422 F.2d 515, 518 (10th Cir.), cert. denied, 399 U.S. 913, 90 S.Ct. 2213, 26 L.Ed.2d 569 (1970), or, who used the evidence for his purposes and then stated he had “no objection” to its introduction. Lawn v. United States, supra, 355 U.S. at 354, 78 S.Ct. 311. Government exhibit 79 is identical to what defendant offered as exhibit A. Counsel for appellant was the first to introduce this exhibit into the trial, during his cross-examination of the government witness David Hintermeister. Soon after, exhibit 79 was introduced into evidence with appellant’s counsel stating “no objection.” Later, when the trial had ended, counsel renewed the motion to suppress “on all grounds heretofore - urged on the Court *" }, { "docid": "19012463", "title": "", "text": "Supreme Court decided that the fruits of an unreasonable search by state officers alone are inadmissible in evidence over timely objection in federal court. . See and compare: Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 198-199, 48 S.Ct. 74, 72 L.Ed. 231; Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Rabinowitz, 339 U.S. 56, 62-63, 70 S.Ct. 430, 94 L.Ed. 653; Draper v. United States, 10 Cir., 248 F.2d 295, 298-299, affirmed in Draper v. United States, 358 U.S. 307, 310-314, 79 S.Ct. 329, 3 L.Ed. 2d 327; Thomas v. United States, 8 Cir., 281 F.2d 132, 136. . In Lawn v. United States, 355 U.S. 339, 353, 78 S.Ct. 311, 319, 2 L.Ed.2d 321, the Supreme Court said: “ * * * It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 119, 73 L.Ed. 275; Gouled v. United States, 255 U.S. 298, 312, 313, 41 S.Ct. 261, 266, 65 L.Ed. 647; Waldron v. United States, 95 U.S.App.D.C. 66, 69-70, 219 F.2d 37, 41; and compare Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515. But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances. Cogen v. United States, supra, 278 U.S. at pages 223, 224, 49 S.Ct. at page 119; Gouled v. United States, supra, 255 U.S. at pages 312, 313, 41 S.Ct. at page 266. * * *" }, { "docid": "22626726", "title": "", "text": "by an assistant United States Attorney, of all revenue agents who had conducted the investigations; that they were there told that it would be necessary to obtain a new indictment which was not to be based in any way, however remote, upon testimony or personal or partnership documents obtained from petitioners in the 1952 grand jury proceedings, and any doubts about the use of any evidence were to be resolved in favor of exclusion; that none of the testimony or personal or partnership records, produced by petitioners before the 1952 grand jury, was in any way used in obtaining the present indictment; and that long before 1952 the Government had in its possession copies and microfilm enlargements of bank checks, bank statements and books and records pertaining to petitioners’ transactions, which had been secured from banks, third persons, a New Jersey receiver, government agencies, and abandoned books and records relating to petitioners’ businesses. The affidavit of the Assistant United States Attorney in charge of the case unequivocally recited that none of the materials obtained from petitioners in the 1952 grand jury proceeding would be used in the future course of the case. The court stated as its reasons: “The United States Attorney has sworn that this material will not be used in the future course of this case, and at this stage of the proceedings, that oath is sufficient. The granting' of defendants’ motion to suppress at this time would necessitate an investigation of all of the Government’s evidence. Such an investigation would entail a great deal of useless effort because much of this material, which has been collected since 1948, will not be used at the trial.” United States v. Giglio, 16 F. R. D., at 270, 271. “Q. In whose handwriting are the entries on Government’s Exhibit 61-B for identification? I think you said it is the stub book. A. To the best of my recollection, those are Mr. Cerone’s. “Q. How do you spell Cerone? A. C-e-r-o-n-e. “Q. He was one of your employees, Mr. Roth? A. No, he was a bookkeeper employed by Tavern Fruit Juice." }, { "docid": "3000629", "title": "", "text": "the deposition should be treated the same. Or he may think that the suppression and destruction of a deposition should follow as a matter of course in the same proceeding in which a subpoena is quashed. Pierce seeks to convince us that none of the District Court’s order is appealable by citing cases holding that an order granting or denying a subpoena or a motion to quash a subpoena is interlocutory and not appealable (e. g., Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; National Nut Co. of California v. Kelling Nut Co., 7 Cir., 134 F.2d 532). We recognize this well established rule concerning subpoenas, but we do not think it applicable to an order suppressing a deposition. We have found no case involving an order of a trial court for the destruction of a deposition. The best discussion we have found on the appealability of a summary proceeding on a motion to suppress a deposition is by Mr. Justice Brandeis in Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. It is a criminal case, but it is a clearly reasoned opinion touching this area. Cogen had been indicted for violating the National Prohibition Act, 41 Stat. 305. He applied to the court in which he had been indicted for the return of certain papers which had been taken from him without a warrant, and to suppress the evidence obtained therefrom. The application was denied, and Cogen appealed the denial before the main trial had begun. The Circuit Court of Appeals held that it had no jurisdiction to review the order, and the Supreme Court affirmed that holding. In the course of his opinion Mr. Justice Brandéis said: “In essence, the motion resembles others made before or during a trial to secure or to suppress evidence, such as applications to suppress a deposition * * 278 U.S. at pages 223-224, 49 S.Ct. at page 119. In that case the Court also said, 278 U.S. at page 225, 49 S.Ct. at page 119: “Motions for the return of papers and" }, { "docid": "14203476", "title": "", "text": "in his possession or under his control, any record, notation, receipt, ticket, certificate, bill, slip, token, paper, or writing, current or not current used or to be used in violating the provisions of section 22-1501, 22-1504, or 22-1508, he shall, upon conviction of each such offense, be fined not more than $1,000 or be imprisoned for not more than one year, or both. For the purpose of this section, possession of any record, notation, receipt, ticket, certificate, bill, slip, token, paper, or writing shall be presumed to be knowing possession thereof.” D.C.Code § 22-1502 (1967 ed.). . Discussed in pt. I hereof. . United States v. Washington, 249 F.Supp. 40 (D.D.C.1965). . See note 8, infra, and related text. . Discussed in pt. II hereof. . The trial judge is not bound by a pretrial denial of a motion to suppress which in appropriate circumstances is renewed at trial. Cogen v. United States, 278 U.S. 221, 224, 49 S.Ct. 118, 73 L.Ed. 275 (1929); Gouled v. United States, 255 U. S. 298, 312-313, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Rouse v. United States, 123 U.S.App.D.C. 348, 349-350, 359 F.2d 1014, 1015-1016 (1966); Anderson v. United States, 122 U.S.App.D.C. 277, 279, 352 F.2d 945, 947 (1965). See also DiBella v. United States, 369 U.S. 121, 129, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). . The Government never proffered the numbers slips and money found under the seat of the car. At the beginning of the trial, it informed the court and defense counsel that it would not inquire as to that discovery. Appellant’s counsel nevertheless opened the subject, and brought out that money and numbers slips which the Government had not produced as evidence had been located under the seat. The Government was thereafter permitted to show testimonial^ that these materials had not been lost. . Waldron v. United States, 95 U.S.App.D.C. 66, 69-71, 219 F.2d 37, 40-42 (1955). . United States v. Washington, supra, note 4, 249 F.Supp. at 41. . As we read the court’s opinion, this involved merely the officer’s observation as appellant opened the door of" }, { "docid": "22626708", "title": "", "text": "of the case stating that materials obtained from petitioners pursuant to subpoena in the 1952 grand jury proceeding would not be used in the future course of the case, preserved his objections to these exhibits and made it unnecessary again to object to them at the trial. It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. Cogen v. United States, 278 U. S. 221, 223; Gouled v. United States, 255 U. S. 298, 312, 313; Waldron v. United States, 95 U. S. App. D. C. 66, 69-70, 219 F. 2d 37, 41; and compare Keen v. Overseas Tankship Corp., 194 F. 2d 515. But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances. Cogen v. United States, supra, at 223, 224; Gouled v. United States, supra, at 312, 313. It will be remembered that the court in passing on the motion to suppress said, respect ing the affidavit of the United States Attorney, that “at this stage of the proceedings that oath is sufficient” (United States v. Giglio, 16 F. R. D., at 271), but he expressly left the matter of suppression of evidence to the trial court and admonished petitioners that if during the course of the trial they “have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.” Id., at 271. The record shows that petitioners’ counsel was fully aware of all this when Exhibits 61-A and 61-B were offered in evidence, and when, after using them for his purposes, he affirmatively said he had “no objection” to them. The Government argues that, had its attention been called to the fact that these particular photostatic copies had been exhibits before the" }, { "docid": "22626707", "title": "", "text": "number of the check stub], which corresponds with the check itself, there is a parenthetical statement, 'Bill G’? A. Yes, sir. Q. Indicating it is for Mr. Giglio’s account? A. Yes, sir.” And petitioners’ counsel then stated, “No objection,” and the exhibits were received. This examination and use of those exhibits (showing on their face that they had been exhibits before the 1952 grand jury) by petitioners’ able counsel to show that the check was an innocent loan by Giglio and not an incriminatory payment by Tavern in the guise of a legal fee — his only opportunity to drive that point home to the jury if petitioners were not to take the stand, as they did not — and his affirmative statement that he had “no objection” to receipt of the exhibits show, we believe, a conscious and intentional waiver of all objections to receipt of those documents in evidence. Lawn argues that the denial, before the trial, of petitioners’ motion to suppress, and the unequivocal affidavit of the United States Attorney in charge of the case stating that materials obtained from petitioners pursuant to subpoena in the 1952 grand jury proceeding would not be used in the future course of the case, preserved his objections to these exhibits and made it unnecessary again to object to them at the trial. It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. Cogen v. United States, 278 U. S. 221, 223; Gouled v. United States, 255 U. S. 298, 312, 313; Waldron v. United States, 95 U. S. App. D. C. 66, 69-70, 219 F. 2d 37, 41; and compare Keen v. Overseas Tankship Corp., 194 F. 2d 515. But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances. Cogen v. United States, supra, at 223, 224; Gouled v. United" }, { "docid": "13971871", "title": "", "text": "denied, the objection made at the trial to the admission of the evidence may be sustained.” Cogen v. United States, supra, 278 U.S. at 224, 49 S.Ct. at 119. See also Waldron v. United States, 95 U.S.App.D.C. 66, 70, 219 F.2d 37, 41 (1955). This is true because “the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light.” DiBella v. United States, supra, 369 U.S. at 129, 82 S.Ct. at 659. The trial court here, after stating it was bound by the pre-trial ruling, nevertheless proceeded to hear the evidence. Compare Jennings v. United States, 101 U.S.App.D.C. 198, 199, 247 F.2d 784, 785 (1957). The evidence taken on the motion to suppress and at trial clearly demonstrates that the motion to suppress was without merit. There the matter ends. Affirmed. . There is no suggestion here that the entry of the not guilty plea precluded appellant from filing, and having heard on their merits, pre-trial motions of any kind. See Rule 12(b) (3), Fed.R.Ceim.P. Compare Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). . The dictum in Council was “unnecessary to Council’s holding that a conviction is not subject to collateral attack merely because counsel was absent during pretrial proceedings, unless that absence prejudiced the accused at trial.” Ricks v. United States, 118 U.S.App.D.C. 216, 219 n. 2, 334 F.2d 964, 967 n. 2 (1964). In Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942), this court held: * * * The constitutional guarantee makes no distinction between the arraignment and other stages of criminal proceedings in respect of the application of the guarantee. As said in the statement quoted from Johnson v. Zerbst, “ ‘If charged with crime, he [the accused] is incapable, generally, of determining for himself whether the indictment is good or bad. ... He requires the guiding hand of counsel at every step in the proceedings against him.’ ” (Emphasis added by Evans court.) . The problem presented by accepting not guilty pleas" }, { "docid": "22626710", "title": "", "text": "1952 grand jury by an objection to them, it could and would have produced other copies obtained from other sources before the 1952 grand jury proceeding was commenced. In that connection it has filed here what is said to be a transcript of a hearing-accorded to Lawn at his request on May 12, 1952, which it says contains photostatic copies of the check and check stub in question voluntarily produced by Lawn. Lawn has moved to strike that transcript and the portions of the Government’s brief relating thereto. That motion must be sustained as we must look only to the certified record in deciding questions presented. McClellan v. Carland, 217 U. S. 268. We believe that the facts from the certified record, above discussed, show that petitioners’ counsel, after using the check and check stub to make his point before the jury that the check was an innocent loan from Giglio and not an incriminatory payment by Tavern in the guise of a legal fee, wisely (as, we believe, every impartial and experienced trial lawyer would agree) said that he had “no objection” to those exhibits, and thus consciously and intentionally waived apy objection to their receipt in evidence. III. Petitioners argue that they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by materials obtained from them in the 1952 grand jury proceedings was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. It cannot be doubted that petitioners had that right in the circumstances of this case, Nardone v. United States, 308 U. S. 338, 341, 342, and the Government does not otherwise contend. Moreover, as earlier stated, the District Court, in ruling the pretrial motion to suppress, expressly left this subject open to inquiry at the trial. United States v. Giglio, 16 F. R. D., at 271. The contention is wholly factual, and a thorough study of the record discloses that petitioners were accorded that right. The court did not sustain objections" }, { "docid": "22687257", "title": "", "text": "procedure, fairness in administration and the elimination of unjustifiable expense and delay”; Rules 39 (d) and 50 assign preference to criminal cases on both trial and appellate dockets. Again, the decisions according finality to civil orders in advance of an ultimately concluding judgment have rested on finding a particular claim to be independent, because “fairly severable from the context of a larger litigious process.” Swift & Co. v. Compania Caribe, supra, 339 U. S., at 689. No such severability inheres in a motion seeking the suppression of evidence at a forthcoming trial; its disposition, as the Court recognized in Cogen v. United States, supra, 278 U. S., at 223, “will necessarily determine the conduct of the trial and may vitally affect the result.” No less when it precedes indictment, the motion presents an issue that is involved in and will be part of a criminal prosecution in process at the time the order is issued. The precise question before us has been much canvassed in the lower courts. It has not only produced a conflict among the circuits, but has provoked practical difficulties in the administration of criminal justice and caused expressions of dissatisfaction even in courts that have sustained an appeal. Although only the Fourth and Fifth Circuits have clearly departed from the Second Circuit’s view, the consensus in the others is far from unwavering. The First Circuit, for example, has declined to permit pretrial entertainment of any suppression motions other than those explicitly authorized by the language of Rule 41 (e). Centracchio v. Garrity, 198 F. 2d 382, 386-389 (1952); accord, e. g., Benes v. Canary, 224 F. 2d 470, 472 (C. A. 6th Cir. 1955). And see In re Fried, 161 F. 2d 453, 465-466 (C. A. 2d Cir. 1947) (opinions of L. Hand and A. Hand, JJ.). These opinions manifest a disinclination to treat as separate and final rulings on the admissibility of evidence which depend on factual contentions that may be more appropriately resolved at a plenary trial. Similarly, a California District Court has recently dismissed for want of equity a pre-indictment bill to suppress," } ]

[ { "docid": "23071812", "title": "", "text": "cence automatically takes from the jury its task of weighing the presumption created by the possession of recently stolen property, these axioms do not require that we overturn the jury verdict. In United States v. Jones, 434 F.2d 232 (5 Cir. 1970), we sated the rules thusly: [T]his and other Circuits have long recognized that the unexplained possession of a recently stolen automobile warrants the inference that the person in possession had knowledge of the theft of the vehicle. United States v. Reed, 5 Cir., 1969, 414 F.2d 435, 438, rev’d on other grounds, 5 Cir., 1969, 421 F.2d 190; United States v. Rawls, 5 Cir., 1970, 421 F.2d 1285, 1287. It is also the rule in this Circuit, however, that where the evidence relied on to sustain a verdict is circumstantial, it must be such that the jury might reasonably find that it excludes every reasonable hypothesis except that of guilt. Surrett v. United States, 5 Cir., 1970, 421 F.2d 403; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. Testimony by the defendant and other witnesses tending to show an absence of guilty knowledge does not preclude the jury from inferring that fact from other evidence. Moody v. United States, 377 F.2d 175, 177 (5th Cir. 1967). Since the evidence as to guilty knowledge on the part of McGlamory was circumstantial, we must decide whether reasonable minds could conclude, as the jury did, that this evidence was inconsistent with every reasonable hypothesis of his innocence. The bulldozer had been stolen the previous night in Mississippi and was in McGlamory’s possession the next morning in Alabama. Such possession of recently stolen property is circumstantial evidence of guilty knowledge. Additionally, when the officers arrived at the farm, the bulldozer was concealed from view, and, at the time of his arrest. McGlamory was in possession of another stolen motor vehicle. The jury was thus faced with Mc-Glamory’s explanation of how he came into possession of the bulldozer, not knowing it to be stolen, and the countervailing circumstances. Issues of this sort are uniquely within the jury’s province, Odom v. United" } ]

[ { "docid": "13326911", "title": "", "text": "it showed a general scheme and modus operandi of such activity by the defendants. Even though the testimony could or should have been offered as part of the government’s case in chief, the trial court’s decision to allow it as rebuttal is not reviewable in the absence of gross abuse of discretion. Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343 (1895); United States v. Fench, 470 F.2d 1234 (1972), cert. denied sub nom., Blackwell v. United States, 410 U. S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961). Not only was there no gross abuse of discretion but we find that it was clearly within the trial court’s discretion to allow evidence of other crimes committed by appellants in order to rebut evidence discrediting the government’s account of the crime and evidence of appellants’ good character. Appellants next argue that a mistrial should have been declared because in the middle of its deliberations the jury may have briefly glimpsed one of the appellants being brought into the courtroom in handcuffs by a United States Marshal. Although the actual facts of the incident are in dispute, even if appellants’ version is taken as true, the incident was brief and not aggravated. The fact that jurors may briefly see a defendant in handcuffs is not so inherently prejudicial as to require a mistrial. United States v. Rickus, 351 F.Supp. 1386 (E.D.Pa.1972), aff’d, 480 F.2d 919 (3d Cir. 1973); United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir. 1972); United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971); United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). Appellants requested but were denied an instruction on entrapment. Their claim that this denial was error is baseless. At the trial, Jelicks admitted using money received from F.B.I. Agents to make payments to the appellants on the outstanding usurious loan. However, the F.B.I. did not" }, { "docid": "3156607", "title": "", "text": "and that when such proof is required, as in the case of a substantive count or in order to give rise to the statutory inference from possession, ‘just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence’ . ” United States v. Nuccio, 373 F.2d 168, 174 n.4 (2d Cir.), cert, denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623, rehearing denied, 389 U.S. 889, 88 S.Ct. 16, 19 L.Ed.2d 199 (1967). . Tantillo and Verderosa also object to the evidence concerning the corruption of Brooks. Enough has been said, we think, to demonstrate that the activities of Brooks were part and parcel of the conspiracy and plainly within the contemplation of Tantillo and Verderosa as conspirators. See Part IV, supra. . See United States v. Baratia, 397 F.2d 215, 224 (2d Cir.), eert. denied, 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968), rehearing denied, 393 U.S. 1045, 89 S.Ct. 613, 21 L.Ed.2d 597 (1969) ; United States v. Bethea, 143 U.S.App.D.C. 68, 70, 442 F.2d 790, 792 (1971) ; United States v. Davis, 461 F.2d 1026, 1035-1036 (3d Cir. 1972) ; United States v. Mendoza, 433 F.2d 891, 896 (5th Cir. 1970), eert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225 (1971) ; Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), eert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961) ; United States v. Jones, 308 F.2d 26, 30 (2d Cir. 1962)." }, { "docid": "23152147", "title": "", "text": "such process merely because the witness he called chose not to testify. . “Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction to the jury.” 21 U.S.C. Sec. 174. “* * * the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.” 26 U.S.C. Sec. 4704(a). . Quiles v. United States, 344 F.2d 490 (9th Cir. 1965); McClure v. United States, 332 F.2d 19 (9th Cir.), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1964) ; Anthony v. United States, 331 F.2d 687 (9th Cir. 1964); Mack v. United States, 326 F.2d 481 (8th Cir. 1964). . Brown v. United States, 222 F.2d 293 (9th Cir. 1955). . Knapp v. United States, 311 F.2d 71 (5th Cir. 1962); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961). But mere presence in the area of the narcotic or awareness of its location is not sufficient to establish possession. Bass v. United States, 326 F.2d 884 (8th Cir. 1964), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964); Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962). . United States v. Jones, 308 F.2d 26 (2nd Cir. 1962); Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962). See Sandler, The Statutory Presumption in Federal Narcotics Prosecutions, 57 J. Crim.Law 7, 15-16 (1966). . See also Adjmi v. United States, 346 F.2d 654 (5th Cir. 1965), cert. denied, 382 U.S. 823, 86 S.Ct. 54, 15 L.Ed.2d 69; Marson v. United States, 203 F.2d 904 (6th Cir. 1953)." }, { "docid": "23331765", "title": "", "text": "being negotiated for sale in appellant’s presence by Thomas Hutchinson to Agent McDowell, one baggie of cocaine in a living room desk and six baggies of cocaine in a bedroom dresser shared by appellant and her husband. “Constructive possession” has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. Rodella v. United States, 286 F.2d 306, 311-312 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961), cited in United States v. Dugan, supra, 477 F.2d at 141. [C]ontrol over the apartment or automobile where the narcotic is found is strong evidence of control over the narcotic. It does not have to be exclusive control over the premises if there is other evidence to show control over the [drug]. Bass v. United States, supra, 326 F.2d at 887. Constructive possession may be established by circumstantial evidence. Bass v. United States, supra, 326 F.2d at 888. The record in this case discloses more than mere proximity of the appellant. Cf. McDonnell v. United States, 472 F.2d 1153, 1156 (8th Cir.), cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973). With full knowledge of prior narcotic transactions between her husband, Thomas Hutchinson, and Agent McDowell, the appellant admitted McDowell to her home on March 20. There he discussed his wish to purchase half a pound of cocaine from “the Source”. When McDowell suggested that “the Source” bring the cocaine, since half a pound was “an awful lot of cocaine” to send through the mails, appellant told him that since the cocaine was sent to various addresses around the neighborhood there really was not that much danger involved. Appellant in words and conduct assumed more than a passive role. She allayed McDowell's professed fears and encouraged him to make a deal for the purchase of approximately one-half pound of cocaine in her residence. Not only was appellant in constructive possession of the cocaine, but she demonstrated her joint interest in the transaction and manifested her intent that the cocaine be distributed" }, { "docid": "304292", "title": "", "text": "every reasonable hypothesis of innocence. See, e. g., Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957/ 87 S.Ct. 395, 17 L.Ed.2d 682; Newsom v. United States, 311 F.2d 74 (5th Cir. 1962). Observance of that rule, though, would cast this Court in the role of the jury. If one hypothesis of innocence were to satisfy this Court’s sense of reasonableness, we would then have to reverse the verdict. We have since settled on a standard which requires reversal of a guilty verdict unless the trier of fact “could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt.” United States v. Sidan-Azzam, 457 F.2d 1309, 1310 (5th Cir. 1972); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). There is some suggestion that the above statement of the rule presents a standard which is different from or stricter than that set forth in United States v. Warner, 441 F.2d 821 (5th Cir. 1971). The Warner opinion dealt with Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a case concerning requested jury instructions. Holland involved the net worth theory of proving income tax evasion. Contending that the Government’s evidence did not disprove that nontaxable sources might be responsible for the increase in his net worth, the taxpayer argued that the trial judge should have instructed the jury that, where the Government’s evidence is circumstantial, it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for the Court, refused to follow such a rule: “Circumstantial evidence in this respect is intrinsically no different from testimonial [direct] evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that" }, { "docid": "3642393", "title": "", "text": "him on the telephone. On redirect Houston admitted that Sadler had told him that there was marijuana in the two footlockers. Johnson rested on the government’s proof. The question, then, is: Was that proof sufficient as to any one of the three Counts? This Circuit adheres to the following rule as to convictions based on circumstantial evidence: “[W]here the evidence relied on to sustain a verdict is circumstantial, it must be such that the trier of fact could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt. Surrett v. United States, 421 F.2d 403 (5th Cir. 1970); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). This test is not simply whether in our opinion the evidence excludes every reasonable hypothesis of innocence, but rather whether the trier of fact might reasonably so conclude. United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Odom v. United States, 377 F.2d 853 (5th Cir. 1967); Williamson v. United States, 365 F.2d 12 (5th Cir. 1966); Rua v. United States, 321 F.2d 140 (5th Cir. 1963); and Vick v. United States, 216 F.2d 228 (5th Cir. 1964),” United States v. Sidan-Azzam, 5 Cir., 1972, 457 F.2d 1309, 1310. See, also, United States v. Currier, 1 Cir., 1972, 454 F.2d 835, 838, n. 6. Citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1940), we have said that “circumstantial evidence [is] to be viewed in the light most favorable to the government where a guilty verdict has been rendered”, United States v. McGlamory, supra. Johnson contends that there is insufficient circumstantial evidence to convict him on any of the three counts. Under the concurrent sentence doctrine, if the evidence was sufficient as to any of the counts a reversal is not in order. In Count III Johnson was charged with “knowingly and intentionally possessing with intent to distribute 63,000 grams of marijuana”. To support this charge the government had to prove that Johnson" }, { "docid": "2913481", "title": "", "text": "it before Lopez’s declarations made out of her presence can be considered; that she cannot be found guilty of conspiracy by mere association; and that the jury could not reasonably determine beyond a reasonable doubt that Bertha Garza was guilty or that the evidence excluded every reasonable hypothesis but that of guilt. The jury’s verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to sustain it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. “Substantial evidence” means such relevant evidence as a reasonably-minded jury might accept as adequate to support a conclusion of defendant’s guilt beyond a reasonable doubt. Riggs v. United States, 5 Cir. 1960, 280 F.2d 949, 953, 954. Otherwise expressed in circumstantial evidence cases, the evidence must be such that a jury might reasonably conclude it sufficient to exclude every reasonable hypothesis but that of guilt. Vick v. United States, 5 Cir. 1954, 216 F.2d 228, 232. Applying those familiar standards, it seems to us that testimony of Eddie Brown and the other Government witnesses was sufficient to support a conclusion of every element of Bertha Garza’s guilt beyond a reasonable doubt. The evidence as to her knowledge of the fact that Lopez and White were dealing in heroin was, however, entirely circumstantial. The jury might have believed the testimony of the Government witnesses and nonetheless have entertained a reasonable doubt that Bertha Garza may have been an innocent go-between used by Lopez in his dealings with Brown. Some such theory was Bertha Garza’s only “out,” consistent with the testimony of Eddie Brown. She did not, however, adopt any such defense. Instead, she specifically denied every detailed link to which the Government witnesses testified, which might connect her with the conspiracy. The jury could, of course, reasonably accept the testimony of Eddie Brown and the other Government witnesses as true, and reject the testimony of Bertha Garza as false. The jury may well have considered Bertha Garza’s denial of the facts to which Brown testified as false and as indicative of a" }, { "docid": "15469064", "title": "", "text": "jury to conclude from the fact that Bruchon had the keys and checks shortly before he was apprehended that he had received them from Bol-land since Government surveillance revealed that Bolland was the only person he had seen at the Americana who could have given them to him. Here, Bolland’s and Bruchon’s actual possession of the keys and checks was sufficient to establish constructive possession of the bags of heroin. “Constructive possession” is that which exists without personal occupation of land or without actual personal present dominion over a chattel, but with intent and capability to maintain control and dominion. Rodella v. United States, 286 F.2d 306, 311 (9 Cir. 1960), cert. den. 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961). Possession may, but need not, imply title. See also United States v. Santore, 290 F.2d 51, 60-61 (2 Cir.), rehearing en banc, 290 F.2d 74 (1960), cert. den. 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961); Covarrubias v. United States, 290 F.2d 157, 158 (9 Cir.), cert. den. 368 U.S. 859, 82 S.Ct. 101, 7 L.Ed.2d 56 (1961); United States v. Buonanno, 290 F.2d 585, 586 (2 Cir. 1961); Teasley v. United States, 292 F.2d 460, 467-468 (9 Cir. 1961); Ramirez v. United States, 294 F.2d 277, 283 (9 Cir. 1961); United States v. Ladson, 294 F.2d 535, 540-541 (2 Cir. 1961), cert. den. 369 U.S. 824, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962); Hernandez v. United States, 300 F.2d 114, 116-117 (9 Cir. 1962). And circumstantial evidence alone may be utilized to determine the fact of possession. Rodella v. United States, supra. Aside from the appellants’ possession of the baggage checks and keys, there was also present here strong circumstantial evidence of actual knowledge of illegal importation. The fact that the Government obtained a search warrant within just two hours after the bags arrived in New York City did not interfere with Bolland’s and Bruchon’s constructive possession of the narcotics after that time. A search warrant is required only to prevent an unreasonable and, therefore, illegal search and seizure, and it does not require" }, { "docid": "21201956", "title": "", "text": "that: (1) Ruffin was illegally in the possession of heroin in Sykes’ apartment; (2) Ruffin attempt ed to dispose of the heroin when the federal officers entered the apartment; ..(3) articles and paraphernalia normally used in the process of diluting heroin were found together on Sykes’ bed within his apartment; (4) a mirror belonging to Sykes and impressed with Ruffin’s left thumb print was found in the apartment, identified as a suitable instrument for the dilution process, and upon analysis found to be sprinkled with particles of heroin; and (5) Sykes and Ruffin failed to admit the officers after their authority and purpose had been announced. The absence of the proscribed drug on the person of Sykes is not fatal to sustaining his conviction. Under the evidence viewed in the light most favorable to the government, the jury was justified in determining that Sykes was guilty under Count Two. See and compare Rodella v. United States, 9 Cir., 286 F.2d 306 (1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961); Bourg and Ledet v. United States, 5 Cir., 286 F.2d 124 (1960), reversed and remanded upon discovery of new evidence, Ledet v. United States, 5 Cir., 297 F.2d 737 (1962); United States v. Montalvo, 2 Cir., 271 F.2d 922 (1959), cert. denied, 361 U.S. 961, 80 S.Ct. 589, 4 L.Ed.2d 543 (1960); Bellah v. United States, 5 Cir., 256 F.2d 958 (1958). Appellants also complain of the admission of certain testimony and of a portion of the court’s charge to the jury. We find no merit in these contentions and conclude that the questioned testimony was not prejudicial to appellants and that the disputed instruction, not objected to at the time the case was submitted to the jury, was not erroneous when viewed in light of the entire charge and that it did not mislead the jury. Appellant Ruffin’s conviction for illegal transportation is reversed with directions to dismiss Count One of the information. The convictions of appellants Ruffin and Sykes under Count Two are affirmed. Reversed as to count one. Affirmed as to count two." }, { "docid": "945693", "title": "", "text": "v. United States, 229 F.2d 936, 939-40 (5th Cir. 1956); McCormick’s Handbook of the Law of Evidence 830 (2d ed. E. Cleary 1972); 9 Wigmore, Evidence § 2490, at 286-88 (3d ed. 1940). When the law authorizes a party to carry the burden of proving a fact by circumstantial evidence, the law merely authorizes the jurors to draw inferences from proven facts. Thus, when seeking to prove a hypothesis, a party may succeed if the jury finds that certain facts have been proved and that, from those facts, the inference naturally follows that the hypothesized fact is true. 1 Wigmore, supra at § 25. A danger exists, however, that the proven facts will be consistent not only with the asserted hypothesis, but also with contradictory hypotheses. Therefore, courts always have exercised care in submitting cases to juries in which proof of essential facts rests entirely on circumstantial evidence. Montoya v. United States, 402 F.2d 847 (5th Cir. 1968); Cohen v. United States, 363 F.2d 321 (5th Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303 (1966); Barnes v. United States, 341 F.2d 189 (5th Cir. 1965); Cuthbert v. United States, 278 F.2d 220 (5th Cir. 1960). The classic instruction on circumstantial evidence in criminal cases included the charge that the jury could not find the defendant to be guilty unless the evidence excluded every reasonable hypothesis other than guilt. Anderson v. United States, 30 F.2d 485 (5th Cir. 1929); Hendrey v. United States, 233 F. 5 (6th Cir. 1916); Garst v. United States, 180 F. 339 (4th Cir. 1910). In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), however, the United States Supreme Court held that this additional instruction was merely confusing and. incorrect when the jury is instructed properly concerning the defendant’s right to be proved guilty beyond a reasonable doubt. Since that decision, the Fifth Circuit consistently has cited Holland to reject assignments of error based on the trial court’s failure to give the additional instruction. E. g., United States v. Boerner, 508 F.2d 1064, 1068-69 (5th Cir.), cert." }, { "docid": "8575042", "title": "", "text": "in which the trial court concludes as a matter of law that a jury could not reasonably find guilt beyond a reasonable doubt. The formulation used by this Court was announced and explained in United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975): “Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was, insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that ‘the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude’ . . . . Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355.” This standard has been subsequently restated in terms of “hypothesis of innocence” in United States v. Smith, 493 F.2d 24, 26, where this Court said: “Additionally, the test is not whether the trial judge or the appellate judge concludes that the evidence fails to exclude every reasonable hypothesis but that of guilt, but whether the jury might reasonably so conclude.” We construe this language as meaning the sainé thing" }, { "docid": "23331764", "title": "", "text": "for the offense of knowingly and intentionally possessing, with the intent to distribute, approximately 11 ounces of cocaine in violation of 21 U.S. C. § 841(a). We disagree. A violation of that statute requires both possession of the contraband and the intent to distribute it. Possession may be actual or constructive, and either sole or joint. United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U. S. 905, 84 S.Ct. 1161, 12 L.Ed.2d 176 (1964); Mack v. United States, 326 F. 2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964); see also United States v. Dugan, 477 F.2d 140 (8th Cir. 1973). It is well settled that knowledge of the presence of the contraband plus control over it is sufficient evidence of possession. Bass v. United States, supra, 326 F.2d at 886. Appellant occupied the residence with her husband, Thomas Hutchinson. The April 7th search revealed, in addition to the approximately 11 ounces of cocaine being negotiated for sale in appellant’s presence by Thomas Hutchinson to Agent McDowell, one baggie of cocaine in a living room desk and six baggies of cocaine in a bedroom dresser shared by appellant and her husband. “Constructive possession” has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. Rodella v. United States, 286 F.2d 306, 311-312 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961), cited in United States v. Dugan, supra, 477 F.2d at 141. [C]ontrol over the apartment or automobile where the narcotic is found is strong evidence of control over the narcotic. It does not have to be exclusive control over the premises if there is other evidence to show control over the [drug]. Bass v. United States, supra, 326 F.2d at 887. Constructive possession may be established by circumstantial evidence. Bass v. United States, supra, 326 F.2d at 888. The record in this case discloses more than mere proximity of" }, { "docid": "478262", "title": "", "text": "any fashion. Moore testified he told appellant he would pay him a couple of dollars to drive to the house of Moore’s brother to pick up some clothing he intended to pawn and that appellant was unaware of the real nature of Moore’s trip. Opinion. Essentially, § 174 proscribes the knowledgeable illegal importation of narcotics into the United States and disposition thereafter knowing of the unlawful entry. In lieu of proof of these proscribed activities, the statute also provides that mere proof of possession of narcotics by the defendant is sufficient evidence to authorize conviction unless he explains the possession to the satisfaction of the jury. The authorities interpreting the form of possession required proven to raise the presumption of guilt have consistently held that constructive as well as physical or actual possession suffices. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert, denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961); United States v. Santore, 290 F.2d 51 (2nd Cir. 1960), cert, denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961); Cellino v. United States, 276 F.2d 941 (9th Cir. 1960); United States v. Landry, 257 F.2d 425 (7th Cir. 1958). Constructive possession, as opposed to physical custody, presupposes a power to exercise dominion and control over the narcotics, susceptible of proof by either direct or circumstantial evidence. Hernandez v. United States, supra; United States v. Jones, supra; Lucero v. United States, 311 F.2d 457 (10th Cir. 1962). The government, however, may not short-circuit its proof of possession as to appellant on the theory that he aided and abetted the principal offender in whom possession of the drug existed. As succinctly pointed out to the contrary by the court construing this statutory provision in Lucero v. United States, supra, 311 F.2d at 459, actual or constructive possession of the aider and abetter must be proven: “Otherwise, an aider and abetter would be required to explain away not his possession but the possession of another.” Moreover, the principal’s mens rea may not be imputed to the aider and abetter in order to sustain the" }, { "docid": "2913480", "title": "", "text": "close to where she lived. She knew Lopez only as a customer in the cafe, but knew his wife. Fred White she knew as a customer and had known him about two years. She had never ridden in or driven a 1960 Rambler automobile owned by White and had never been in or around White’s garage. She had never seen the witness Brown until he took the stand. She had never been arrested for any other offense. She had never seen any dope or heroin. She had never received any phone calls from Brown. She did not know that Lopez stayed in Room 39 at the Walker Hotel. Her home was searched by the officers one night but nothing was found. In support of the motion for judgment of acquittal, it is strenuously urged that the Government failed to prove that Bertha Garza had any knowledge of the fact that Lopez and White were dealing in heroin; that there must be proof aliunde of the existence of the conspiracy and of Bertha Garza’s connection with it before Lopez’s declarations made out of her presence can be considered; that she cannot be found guilty of conspiracy by mere association; and that the jury could not reasonably determine beyond a reasonable doubt that Bertha Garza was guilty or that the evidence excluded every reasonable hypothesis but that of guilt. The jury’s verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to sustain it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. “Substantial evidence” means such relevant evidence as a reasonably-minded jury might accept as adequate to support a conclusion of defendant’s guilt beyond a reasonable doubt. Riggs v. United States, 5 Cir. 1960, 280 F.2d 949, 953, 954. Otherwise expressed in circumstantial evidence cases, the evidence must be such that a jury might reasonably conclude it sufficient to exclude every reasonable hypothesis but that of guilt. Vick v. United States, 5 Cir. 1954, 216 F.2d 228, 232. Applying those familiar standards, it seems to us that testimony" }, { "docid": "22905980", "title": "", "text": "the mere fact that the goods were found in the car they were driving is not sufficient circumstantial evidence of knowledge; that an inference of innocence was as reasonable as an inference of guilt; that, since anyone could have put the package there, the jury was not entitled to infer from its presence in their car that appellants had put it there. Possession can be established by circumstantial evidence. Covarrubias v. United States, 9 Cir., 1959, 272 F.2d 352; Evans v. United States, 9 Cir., 257 F.2d 121, supra; United States v. Malfi, 3 Cir., 1959, 264 F.2d 147, certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; United States v. Pinna, 7 Cir., 1950, 229 F.2d 216. Indeed, one might ponder long before discovering any other possible form of proof aside from admission. In Evans v. United States, supra, at page 128 of 257 F.2d, this Court stated: “Proof that one had exclusive control and dominion over property on or in which contraband narcotics are found, is a potent circumstance tending to prove knowledge of the presence of such narcotics, and control thereof.” In Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, certiorari denied 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631, this Court considered the contention that the circumstantial evidence upon which the defendant had been convicted was as consistent with a theory of innocence as with one of guilt. We stated, at page 393 of 183 F.2d: “The testimony of the fingerprint expert was sufficient to go to the jury if its nature was such that reasonable minds could differ as to whether inferences other than guilt could be drawn from it. It is not for us to say that the evidence was insufficient because we, or any of us, believe that inferences inconsistent with guilt may be drawn from it. To say that would make us triers of the fact. We may say that the evidence is insufficient to sustain the verdict only if we can conclude as a matter of law that reasonable minds, as triers of the fact, must" }, { "docid": "22191341", "title": "", "text": "of heroin. She was also observed while engaging with Bivens on Fifth Avenue in Harlem, in a transaction which, notwithstanding its acquittal of Bivens, the jury was entitled to find was narcotics-related. In addition, she was seen making a trip at night into Manhattan, accompanied by Tangee Afflic, in order to bring a package into Myers’s office. These activities, as well as telephone calls in which she furnished information to Myers about surveillances, and the presence of her “Afflic” laundry tags at the heroin mill, provided the jury with sufficient evidence to conclude that she was actively involved in the operations of the conspiracy. Whether she participated with guilty knowledge presented a factual issue that the jury was entitled to resolve against her on the basis of this circumstantial evidence. See United States v. DeFiore, 720 F.2d 757, 762-63 (2d Cir.1983); United States v. Carson, 702 F.2d at 362 (quoting Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954) (“The government’s proof need not ‘exclude every reasonable hypothesis, other than that of guilt’ to support a conviction”)). ait -u ,tt •. j cu a Alliebe Afflics reliance on United States 0 no„ ,0, .„0oN • • v. Soto, 716 F.2d 989 (2d Cir.1983), is mis- . , T r, i 11 , .j „ ... placed. In Soto, the only evidence of the defendant’s guilt was her “sustained and regular presence” in an apartment used as a heroin mill. 716 F.2d at 991. In contrast, the case against Alliebe Afflic here did not rest merely on her presence at any one location. Rather, the evidence — including the surveillances of her directly engaging in what the jury was entitled to find were narcotics transactions — provided precisely what this court found lacking in Soto: “some showing of purposeful behavior tending to connect defendant with” the violations of law which were the objects of the conspiracy. Id. at 991-92. 5 Tangee Afflic Unlike the case against the other appellants, the government’s proof was simply not sufficient to support Tangee Afflic s conspiracy conviction. It" }, { "docid": "10308933", "title": "", "text": "917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 (1967). The brothers were neither charged with nor found guilty of conspiracy. There was no direct evidence that Lonnie knew anything about the heroin concealed on Johnnie’s person, and there is no circumstantial evidence from which that knowledge can be presumed or inferred. Lonnie was not in actual possession of the contraband. He would have been in constructive possession of the heroin if he had personally shared custody of it or had such dominion and control over the drug as to give him the power of disposition. Brothers v. United States, supra, 328 F.2d at 155; Arellanes v. United States (9 Cir. 1962) 302 F.2d 603, 606, cert. denied 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962); Rodella v. United States (9 Cir. 1960) 286 F.2d 306, 311, cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1960). Johnnie’s acts could also be imputed to Lonnie if Johnnie was Lonnie’s agent, subject to his control. United States v. Hernandez (2 Cir. 1961) 290 F.2d 86, 90. But “mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession.” Arellanes v. United States, supra, 302 F.2d at 606; Evans v. United States (9 Cir. 1958) 257 F.2d 121, 126, cert. denied 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). From the facts that Johnnie and Lonnie were brothers who maintained a close relationship with each other, that the trip was Lonnie’s idea and he paid for the flight from San Francisco to Los Angeles, that Lonnie drove the borrowed car, and that Lonnie may have had a stronger personality than Johnnie, no inference arises that Johnnie was subject to Lonnie’s direction and control, or that they were joint venturers engaged in narcotic activity, or that Lonnie could control the disposition of the heroin concealed on Johnnie’s person. That evidence, of course, may give rise to a" }, { "docid": "9681935", "title": "", "text": "conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt.” United States v. Giuliano, 263 F.2d 582, 584 (3d Cir. 1959), United States v. Boyle, 402 F.2d 757 (3d Cir. 1968) cert. denied 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969). The circumstantial nature of the evidence does not alter this conclusion. United States v. Boyle, supra. Theft, like most other facts, can be proven circumstantially. United States v. Allegrucci, 258 F.2d 70, 76 (3d Cir. 1958). Since circumstantial and testimonial evidence are indistinguishable insofar as the jury’s fact-finding function is concerned, all that is to be required of the jury is that it weigh all of the evidence, direct or circumstantial, against the standard of reasonable doubt. Hol land v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Kibler contends that the government produced insufficient evidence to establish that the accused knew that the property was the subject matter of a particular theft on February 3, 1971. Appellant misinterprets § 2113(c). The government did not have to prove that Kibler knew of any specific theft, but only that he had knowledge the checks were stolen from a Credit Union. United States v. Licausi, 413 F.2d 1118 (5th Cir. 1969), cert. denied 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970). United States v. Allegrucci, supra. There was ample evidence for the jury to conclude that Kibler knew the checks were stolen from a credit union. First, “Westinghouse Electric A.B. Building Employees Federal Credit Union No. 406” was imprinted on each of the checks introduced into evidence. Second, an inference of guilty knowledge may be drawn from the unexplained possession of recently stolen property. United States v. Allegrucci, 299 F.2d 811 (3d Cir. 1962), Hale v. United States, 410 F.2d 147 (5th Cir. 1969) cert. denied 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). What constitutes “recently stolen property” is not susceptible to precise definition. In Allegrucci, a six week gap between shipment of some goods and" }, { "docid": "8575041", "title": "", "text": "susceptible of several interpretations. As long as it is susceptible to one valid interpretation that would sustain a verdict of guilty then I have no alternative except to send it to the jury.” (Emphasis added.) Prior to the Holland case, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), this Court had announced the rule that in circumstantial evidence cases to sustain a conviction the inferences to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. See Vick v. United States, 216 F.2d 228 (5th Cir. 1954) and other pre-Holland cases. Following the Holland case, which dealt with the charge to the jury in such a case, this Court has undertaken to formulate a standard to be applied by trial courts in making their determination whether a case should be submitted to the jury. The objective of such determination, of course, is to enable the trial court to terminate as early as possible the case in which the trial court concludes as a matter of law that a jury could not reasonably find guilt beyond a reasonable doubt. The formulation used by this Court was announced and explained in United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975): “Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was, insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99" }, { "docid": "10308932", "title": "", "text": "take the contraband into the United States and to deliver it at some unspecified time that evening in Los Angeles. He said that Lonnie knew nothing about the contraband and that Lonnie had nothing to do with it. At the time of Lonnie’s arrest and at the trial, Lonnie denied that he knew anything about the contraband and insisted that he had no complicity in the incident. He also testified that he and his brother were separated for varying periods of time during their visit to Tijuana. Lonnie’s Appeal The evidence is insufficient to support Lonnie’s conviction. The Government had to prove that Lonnie received or concealed, or facilitated Johnnie’s transportation or concealment of the heroin, that the heroin had been import ed contrary to law, and that Lonnie had knowledge of the illegal importation. E. g., Brothers v. United States (9 Cir. 1964) 328 F.2d 151, 152-153, cert. denied 377 U.S. 1001, 84 S.Ct. 1934, 12 L.Ed.2d 1050 (1964); United States v. Llanes (2 Cir. 1967) 374 F.2d 712, 715, cert. denied 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 (1967). The brothers were neither charged with nor found guilty of conspiracy. There was no direct evidence that Lonnie knew anything about the heroin concealed on Johnnie’s person, and there is no circumstantial evidence from which that knowledge can be presumed or inferred. Lonnie was not in actual possession of the contraband. He would have been in constructive possession of the heroin if he had personally shared custody of it or had such dominion and control over the drug as to give him the power of disposition. Brothers v. United States, supra, 328 F.2d at 155; Arellanes v. United States (9 Cir. 1962) 302 F.2d 603, 606, cert. denied 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962); Rodella v. United States (9 Cir. 1960) 286 F.2d 306, 311, cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1960). Johnnie’s acts could also be imputed to Lonnie if Johnnie was Lonnie’s agent, subject to his control. United States v. Hernandez (2 Cir. 1961) 290 F.2d" } ]

[ { "docid": "1594927", "title": "", "text": "Mot. for Sur-Reply”), ECF No. 47. Systems promptly asserted that this document was subject to the attorney-client privilege and work-product protection, requested claw-back of the document, and filed a motion to strike Mr. Cormack’s brief incorporating the disputed document. See Def.-Intervenor’s Emergency Mot. to Strike Pl.’s Resp. to Mot. for Leave to File Sur-Reply (“Def.-Intervenor’s Mot. to Strike”), ECF No. 48. That motion was also briefed, and a hearing on the related motions was held on June 19, 2014. BACKGROUND On April 3, 2013, Mr. Cormack filed his complaint in this court, alleging that the United States Postal Service (“Postal Service”) engaged in an unlicensed procurement and authorization of manufacture and use of patented inventions, a claim arising under 28 U.S.C. § 1498. Compl. ¶¶2, 3. In August 2010, Mr. Cormack had been granted United States Patent No. 7,781,693 (“the '693 Patent”), entitled “Method and System for Sorting Incoming Mail.” Compl. ¶ 6. Mr. Cormack alleged that the Postal Service infringed this patent when it contracted with Northrop Grumman Systems for the manufacture and delivery of Flats Sequencing Systems (“FSS”), a mail sorting device. Compl. ¶¶8-9, 32. Mr. Cormack further averred that, pursuant to the contract, Northrop Grumman Systems actually manufactured and delivered 102 such machines and that the Postal Service continues to use them. Compl. ¶¶ 13, 15, 28. Shortly after Mr. Cormack filed his complaint, the court granted the government’s unopposed motion to notify Northrop Grumman Systems as an interested party pursuant to RCFC 14(b). Order of May 29, 2013, ECF No. 8. The government advised the court that its contract with Northrop Grumman Systems contains an indemnity clause whereby Systems is obligated to indemnify the government against liability for patent infringement. Def.’s Unopposed Mot. for Rule 14 Notice at 2, ECF No. 6. Subsequent ly, Northrop Grumman Systems filed a motion to intervene as a defendant-intervenor, ECF No. 13, which this court granted the same day, Order of June 24, 2013, ECF No. 16. I. CLAW-BACK REQUEST During briefing related to Mr. Cormack’s motion to compel discovery responses, Mr. Cormack filed a brief attaching an exhibit (“Exhibit" } ]

[ { "docid": "1594926", "title": "", "text": "Patent case; discovery dispute; attorney-client privilege; work-product protection; claw-back request; RCFC 26(b)(5)(B); Fed.R.Evid. 502(b); compelled production of documents from an affiliated nonparty foreign corporate entity that joined with the party in development of the allegedly infringing product; discovery related to nonaeeused products OPINION AND ORDER LETTOW, Judge. In this patent case, plaintiff, Cameron Lanning Cormack (“Mr. Cormack”), filed a motion to compel discovery responses from defendant-intervenor, Northrop Grumman Systems Corporation (“Northrop Grumman Systems” or “Systems”), pursuant to Rule 37 of the Rules of the Court of Federal Claims (“RCFC”). See Pl.’s Mot. to Compel Discov ery Responses from Def.-Intervenor (“PL’s Mot. to Compel”), ECF No. 37. During briefing related to this motion, Systems filed a motion for leave to file a sur-reply. Def.-Intervenor’s Mot. for Leave to File Sur-Reply, ECF No. 45. In his responsive brief, Mr. Cormack used a document produced by Northrop Grumman Systems to support his opposition. See PL’s Resp. in Opp’n to Def.-Intervenor’s Mot. for Leave to File Sur-Reply in Further Opp’n to Pl.’s Mot. to Compel (“Pl.’s Opp’n to Def.-Intervenor’s Mot. for Sur-Reply”), ECF No. 47. Systems promptly asserted that this document was subject to the attorney-client privilege and work-product protection, requested claw-back of the document, and filed a motion to strike Mr. Cormack’s brief incorporating the disputed document. See Def.-Intervenor’s Emergency Mot. to Strike Pl.’s Resp. to Mot. for Leave to File Sur-Reply (“Def.-Intervenor’s Mot. to Strike”), ECF No. 48. That motion was also briefed, and a hearing on the related motions was held on June 19, 2014. BACKGROUND On April 3, 2013, Mr. Cormack filed his complaint in this court, alleging that the United States Postal Service (“Postal Service”) engaged in an unlicensed procurement and authorization of manufacture and use of patented inventions, a claim arising under 28 U.S.C. § 1498. Compl. ¶¶2, 3. In August 2010, Mr. Cormack had been granted United States Patent No. 7,781,693 (“the '693 Patent”), entitled “Method and System for Sorting Incoming Mail.” Compl. ¶ 6. Mr. Cormack alleged that the Postal Service infringed this patent when it contracted with Northrop Grumman Systems for the manufacture and delivery" }, { "docid": "20849506", "title": "", "text": "Patent case; motion to compel production of documents .claimed to be protected against disclosure by attorney-client privilege OPINION AND ORDER LETTOW, Judge. In this patent case, defendant-intervenor, Northrop Grumman Systems Corporation (“Northrop Grumman Systems” or “Systems”) seeks from plaintiff, Mr. Cameron Lanning Cormaek, production in discovery of a set of documents comprising correspondence and communications related to the patent prosecution of U.S. Patent No. 7,781,693 (“the ’693 patent”), the patent at issue. Mi-. Cormaek contends that the documents are protected against disclosure by the attorney-client privilege. Northrop Grumman Systems asserts that the documents are properly discoverable because Mr. Cormaek waived the attorney-client privilege to these documents when he earlier produced correspondence and communications related to the same subject matter. Mr. Cormaek concedes that he waived his attorney-client privilege to the earlier set of documents but argues that attorney-client privilege has not been waived for the documents attendant to patent prosecution. BACKGROUND Mr. Cormaek filed his complaint in this court on April 3, 2013, alleging that the ’693 patent, issued to him on August 24, 2010, was being infringed by the United States Postal Service (“Postal Service”). See Cormack v. United States, 117 Fed.Cl. 392, 395-96, 2014 WL 3555255, at *1 (July 18, 2014) (addressing earlier discovery disputes). In particular, Mr. Cormaek alleges that mail sorting devices called Flats Sequencing Systems, manufactured by Northrop Grumman Systems and delivered to the Postal Service, infringe this patent. Id. Due to an indemnity clause in the Postal Service’s contract with Northrop Grumman Systems, the court granted Systems’s motion to intervene as a defendant-intervenor. Id., at *2. On November 14, 2013, the court held a preliminary scheduling conference during which the parties and the court developed an agreed schedule regarding discovery. See Scheduling Order, Nov. 14, 2013, ECF No. 33. Under this schedule, the government would produce source code to Mr. Cormaek by November 27, 2013. Id. By February 14, 2014, Mr. Cormaek would submit to the defendants his infringement contentions. Id. Six weeks later, by March 28, 2014, the defendants would submit their contentions of non-infringement, unenforeeability, and invalidity, along with an accompanying production" }, { "docid": "4114448", "title": "", "text": "scanning apparatus, to each of the plurality of receiving bins and to the conveyor apparatus, wherein the control system is adapted to assign the mailstop to any one of the plurality of receiving bins, the control system further adapted to cause the conveyor apparatus to carry the mailpiece to the receiving bin assigned with the mailstop, the control system further adapted to cause the conveyor apparatus to carry the mail-piece to the receiving bin assigned with the mailstop and deposit the mailpiece into the receiving bin, wherein the control system is further adapted to transmit a command to a first receiving bin to empty its contents if and when the scanning apparatus identifies a new mailpiece having a new mailstop after all of the receiving bins have been assigned a mailstop different from the new mailstop, the control system further adapted to reassign the first receiving bin with the new mailstop and to cause the conveyor apparatus to carry the new mailpiece to the first receiving bin and deposit the new mailpiece into the first receiving bin. '693 patent, Claim 10 (emphasis added). Mr. Cormack claims that the Postal Service infringed the '693 patent by contracting ■with Northrop Grumman Systems for the manufacture and delivery of mail sorting devices called Flats Sequencing Systems (“FSS”). Compl. ¶¶8-9, 32. Mr. Cormack specifically alleges that Northrop Grumman Systems, in accordance with the contract, actually manufactured and delivered 102 FSS machines that the Postal Service continues to use. Compl. ¶¶ 13,16, 28. PROCEDURAL HISTORY Because the Postal Service’s contract with Northrop Grumman Systems contained an indemnity clause, the court granted Northrop Grumman Systems’s motion to intervene as a defendant-intervenor. See Cormack v. United States, 117 Fed.Cl. 392, 396 (2014) (“Cormack I”) (addressing discovery disputes). After explication by the parties of issues and defenses, and completion of some discovery, the parties submitted briefs on claim construction and presented oral arguments at a Markman hearing held on August 27, 2014. Of the 11 terms in the '693 patent identified by the parties as requiring construction, two have a mutually acceptable construction. The court adopts the parties’" }, { "docid": "20849509", "title": "", "text": "scheduling order, Northrop Grumman Systems served its invalidity contentions. Id. at 3. As part of its invalidity contentions, Systems alleged that engineers at Lockheed Martin had conceived of the technology claimed in the ’693 patent by July 2004, prior to the filing date of the application that resulted in the ’693 patent, May 23, 2006, and prior to Mr. Cormaek’s date of conception. Id. at 3 & n.2. Thereafter, on April 28, 2014, Mr. Cormack supplemented his interrogatory response regarding the date of conception, changing it from August 2004 to November 2003. Id. at 3, Ex. 7, at 7. In support of his amendment, Mr. Cormack produced 57 documents previously withheld and listed on his privilege logs, which, according to his counsel, are all related to the dates of conception, reduction to practice, and diligence. Id. at 3; Pl.’s Resp. in Opp’n to Def.-Intervenor Northrop Grumman Systems Corporation’s Mot. to Compel (“Pl.’s Opp’n”) at 3, ECF No. 58. The documents produced on April 28, 2014 reportedly predate the filing of the ’693 patent application. Id. By its motion to compel, Northrop Grumman Systems seeks production of Document Nos. 2, 17, 38-54, 59-73, 75-83, and 94-130 from the Second Privilege Log and Document Nos. 4-8 from the Third Privilege Log. Def.-Intervenor’s Mot. to Compel at 1 & n.l. These documents are described in the privilege logs as related to patent prosecution, and they all post-date the filing of the ’693 patent application. Id. at 1, 4-5. Northrop Grumman Systems argues that Mr. Cormack waived the attorney-client privilege as to these documents through his disclosure on April 28, 2014 of documents covering the same subject matter. Id. at 5. Mr. Cormack has resisted the motion by arguing that the documents sought by Northrop Grumman Systems do not cover the same subject matter as the documents he previously disclosed. Pl.’s Opp’n at 5-6. After Northrop Grumman Systems filed its reply, Def.-Interve-nor’s Reply in Support of Mot. to Compel (“Def.-Intervenor’s Reply”), ECF No. 61, a hearing on the motion to compel was held August 5,2014. STANDARDS FOR DECISION Rule 26(b) of the Rules of" }, { "docid": "1594929", "title": "", "text": "3”) which contained an e-mail from an employee of Northrop Grumman Systems to another employee of Systems who was designated in the e-mail as working in the Law Department but was not identified as an in-house counsel. See Pl.’s Opp’n to Def.-Intervenor’s Mot. for Sur-Reply Ex. 3. The e-mail was dated approximately one month after the commencement of this case, but prior to Systems’s intervention. Id. Its subject line read “Some [Information for FSS Patent Infringement.” Id. Upon receiving Mr. Cormaek’s brief, Systems’s counsel realized Systems had mistakenly produced the email. He informed Mr. Cormack’s counsel the morning after receiving the filing that he believed Exhibit 3 constituted privileged in formation and asked Mr. Cormack’s counsel to return or destroy all copies of the exhibit, citing RCFC 26(b)(5)(B). See Def.-Interve-nor’s Reply in Support of Mot. to Strike Pl.’s Resp. to Mot. for Leave to File Sur-Reply (“Def.-Intervenor’s Reply in Support of Mot. to Strike”) Ex. 1 (Decl. of Gregory H. Lantier), ¶¶ 11-12, ECF No. 55. Upon receiving the request, Mr. Cormack’s counsel ceased reviewing the exhibit and destroyed all copies save one, which he sequestered. See Pl.’s Opp’n to Def.-Intervenor’s Emergency Mot. to Strike Resp. to Mot. for Leave to File Sur-Reply (“Pl.’s Opp’n to Def.-Intervenor’s Mot. to Strike”) at 1 n. 1, ECF No. 53. On June 16, 2014, four days after Exhibit 3 was filed, Northrop Grumman Systems submitted a motion to strike the response by Mr. Cormack that included the e-mail as an exhibit. Def.-Intervenor’s Mot. to Strike; Def.-Intervenor’s Mem. in Support of its Mot. to Strike (“Def.-Intervenor’s Mem. Supporting Mot. to Strike”), ECF No. 49. Systems sought to claw back the email and to have Exhibit 3 and the responsive brief containing it stricken from the record. Def.-Intervenor’s Mem. Supporting Mot. to Strike at 1-2. Plaintiff resisted this motion, noting that RCFC 26(b)(5)(B) explicitly permits the court to view the pertinent document under seal and contesting the applicability of the attorney-client privilege or the work-product protection to the exhibit. See Pl.’s Opp’n to Def.-Intervenor’s Mot. to Strike at 1-10. Plaintiff also contended that Northrop Grumman" }, { "docid": "20849508", "title": "", "text": "of documents. Id. On April 30, 2014, Mr. Cormaek’s response to any invalidity contentions were due. Id. Following these deadlines, the court specified additional deadlines for a joint claim-construction statement and briefing on claim construction. Id. During discovery, Northrop Grumman Systems made document requests to Mr. Cormaek. See Def.-Intervenor Northrop Grumman Systems Corporation’s Mem. of Law in Support of Mot. to Compel Discovery of Documents from PI. (“Def.-Intervenor’s Mot. to Compel”) at 2 & Ex. 1, ECF No. 54. In response, Mr. Cormaek produced doeu- ments and submitted three privilege logs, dated October 31, 2013 (“First Privilege Log”), January 21, 2014 (“Second Privilege Log”), and February 3, 2014 (“Third Privilege Log”), which provided a brief description of documents withheld and the reasons they were withheld. Id. As part of his discovery disclosures, Mr. Cormack indicated that he conceived of the inventions claimed in the ’693 patent at least as early as August 2004. Id. Ex. 6 (Pl.’s Resp. to Def.-Interve-nor’s First Set of Interrog.), at 7. On March 28, 2014, as required by the court’s scheduling order, Northrop Grumman Systems served its invalidity contentions. Id. at 3. As part of its invalidity contentions, Systems alleged that engineers at Lockheed Martin had conceived of the technology claimed in the ’693 patent by July 2004, prior to the filing date of the application that resulted in the ’693 patent, May 23, 2006, and prior to Mr. Cormaek’s date of conception. Id. at 3 & n.2. Thereafter, on April 28, 2014, Mr. Cormack supplemented his interrogatory response regarding the date of conception, changing it from August 2004 to November 2003. Id. at 3, Ex. 7, at 7. In support of his amendment, Mr. Cormack produced 57 documents previously withheld and listed on his privilege logs, which, according to his counsel, are all related to the dates of conception, reduction to practice, and diligence. Id. at 3; Pl.’s Resp. in Opp’n to Def.-Intervenor Northrop Grumman Systems Corporation’s Mot. to Compel (“Pl.’s Opp’n”) at 3, ECF No. 58. The documents produced on April 28, 2014 reportedly predate the filing of the ’693 patent application. Id." }, { "docid": "1594974", "title": "", "text": "1, 2003 and tire present for Mail Sorting Systems sold by you in the United States: (1) number of Mail Sorting Systems sold; (2) your gross and net revenues related to the sale of Mail Sorting Systems; (3) your costs of goods sold; and (4) your gross and net profits related to the sale of Mail Sorting Systems, and identify all documents related thereto, including but not limited to documents responsive to Document Requests 117-120. Pl.'s Mot. to Compel Ex. F, at 10 (Pl.’s Second Set of Interrogatories to Northrop Grumman Systems). Systems has provided Mr. Cormack with the number of FSS machines sold to the government and the price paid for them, i.e., the revenues related to the sale of the accused machines. Hr’g Tr. 56:12-20. As to gross and net profits and loss, Northrop Grumman Systems explained at the hearing that the FSS contract has been a loss for the company, and “[t]he way in which that loss is calculated greatly depends on how you want to value the different aspects of the work that [Systems] put in.\" Hr’g Tr. 56:23-25. Systems maintains that there is no single document or comprehensive narrative response more readily available to it than to Mr. Cormack. Def.-Intervenor’s Sur-Reply in Opp’n to Pl.’s Mot. to Compel Discovery (‘‘Def.-Intervenor’s Sur-Reply”) at 2. Northrop Grumman Systems asserts that it has provided all of the data related to the \"costs of goods sold” associated with performance of its contract with the Postal Service and further interpretation and analysis of that data will likely be the subject of expert testimony from all parties. Id.) see also Hr’g Tr. 56:21 to 58:7. In a related vein, Mr. Cormack complains that Northrop Grumman Systems’s response to Interrogatory No. 16 consists of a 50-page list of documents from which he is expected to develop a summary. Pl.’s Reply Supporting Mot. to Compel at 4. Systems points to the fact that its contract with the Postal Service is thousands of pages long and contains numerous performance requirements that have shifted over time, and thus the precise costs associated with this contract" }, { "docid": "4114449", "title": "", "text": "receiving bin. '693 patent, Claim 10 (emphasis added). Mr. Cormack claims that the Postal Service infringed the '693 patent by contracting ■with Northrop Grumman Systems for the manufacture and delivery of mail sorting devices called Flats Sequencing Systems (“FSS”). Compl. ¶¶8-9, 32. Mr. Cormack specifically alleges that Northrop Grumman Systems, in accordance with the contract, actually manufactured and delivered 102 FSS machines that the Postal Service continues to use. Compl. ¶¶ 13,16, 28. PROCEDURAL HISTORY Because the Postal Service’s contract with Northrop Grumman Systems contained an indemnity clause, the court granted Northrop Grumman Systems’s motion to intervene as a defendant-intervenor. See Cormack v. United States, 117 Fed.Cl. 392, 396 (2014) (“Cormack I”) (addressing discovery disputes). After explication by the parties of issues and defenses, and completion of some discovery, the parties submitted briefs on claim construction and presented oral arguments at a Markman hearing held on August 27, 2014. Of the 11 terms in the '693 patent identified by the parties as requiring construction, two have a mutually acceptable construction. The court adopts the parties’ agreed constructions of those two terns. With respect to the nine disputed terms, the constructions adopted by the court are specified below. DISCUSSION A. Standards for Construction “Claim construction is a legal statement of the scope of the patent right.” CardSoft v. Verifone, Inc., 769 F.3d 1114, 1117, 2014 WL 5303000, at *2 (Fed.Cir. Oct. 17, 2014) (citing Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1276-77 (Fed.Cir.2014)). The construction and meaning of claims in a patent are questions of law for the court to address. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). While the trial court is not required to construe every term in a patent, it must construe any term for which claim scope is disputed. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360, 1362 (Fed.Cir.2008). The court should first examine the intrinsic evidence of record, as “intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics" }, { "docid": "1594973", "title": "", "text": "parties to identify their infringement contentions and non-infringement, unenforce-ability, and invalidity contentions by February 14, 2014 and March 28, 2014, respectively. See Scheduling Order of Nov. 14, 2013, ECF No. 33. . See, e.g., Samsung SDI Co., Ltd. v. Matsushita Elec. Indus. Co., Ltd., No. 05-8493-AG, 2007 WL 4302701, at *2-*3 (C.D. Cal. June 27, 2007) (relying heavily on interpretation of a local patent rule in denying a party’s motion to compel discovery related to nonaccused products). . For example, the bar code reader cited by Mr. Cormack’s counsel during the hearing on the pending motion, Hr’g Tr. 45:2-4, does not seem sufficiently similar to an FSS-type mail sorting machine to fall within an appropriate definition of \"mail sorting product” subject to document requests and interrogatories. .Mr. Cormack has not, however, withdrawn his motion to compel a further response by Systems to a related interrogatory seeking an analysis and summary of the documents provided. Interrogatory No. 16’ requests that Northrop Grumman Systems [¡Identify separately, for each of the years in the time period between January 1, 2003 and tire present for Mail Sorting Systems sold by you in the United States: (1) number of Mail Sorting Systems sold; (2) your gross and net revenues related to the sale of Mail Sorting Systems; (3) your costs of goods sold; and (4) your gross and net profits related to the sale of Mail Sorting Systems, and identify all documents related thereto, including but not limited to documents responsive to Document Requests 117-120. Pl.'s Mot. to Compel Ex. F, at 10 (Pl.’s Second Set of Interrogatories to Northrop Grumman Systems). Systems has provided Mr. Cormack with the number of FSS machines sold to the government and the price paid for them, i.e., the revenues related to the sale of the accused machines. Hr’g Tr. 56:12-20. As to gross and net profits and loss, Northrop Grumman Systems explained at the hearing that the FSS contract has been a loss for the company, and “[t]he way in which that loss is calculated greatly depends on how you want to value the different aspects of the" }, { "docid": "1594975", "title": "", "text": "work that [Systems] put in.\" Hr’g Tr. 56:23-25. Systems maintains that there is no single document or comprehensive narrative response more readily available to it than to Mr. Cormack. Def.-Intervenor’s Sur-Reply in Opp’n to Pl.’s Mot. to Compel Discovery (‘‘Def.-Intervenor’s Sur-Reply”) at 2. Northrop Grumman Systems asserts that it has provided all of the data related to the \"costs of goods sold” associated with performance of its contract with the Postal Service and further interpretation and analysis of that data will likely be the subject of expert testimony from all parties. Id.) see also Hr’g Tr. 56:21 to 58:7. In a related vein, Mr. Cormack complains that Northrop Grumman Systems’s response to Interrogatory No. 16 consists of a 50-page list of documents from which he is expected to develop a summary. Pl.’s Reply Supporting Mot. to Compel at 4. Systems points to the fact that its contract with the Postal Service is thousands of pages long and contains numerous performance requirements that have shifted over time, and thus the precise costs associated with this contract are not easily culled from the data provided. Hr’g Tr. 57:19-25. The court cannot compel Northrop Grumman Systems to produce documents or submissions that do not exist. See Tech v. United States, 284 F.R.D. 192, 198 (M.D.Pa.2012) (“It is clear that the court cannot compel the production of things that do not exist. Nor can the court compel the creation of evidence by parties who attest that they do not possess the materials sought by an adversary in litigation.”); see also United States v. Capitol Supply, Inc., - F.Supp.3d -, -, No. 13-mc-0373, 2014 WL 1046006, at *9 (D.D.C. Mar. 19, 2014) (quoting Tech, 284 F.R.D. at 198). In the circumstances, the court has no reason to believe that Systems possesses a readily available narrative responsive to the pertinent interrogatory. . The court notes that this subject may be a proper matter for deposition testimony by a designee of Systems pursuant to RCFC 30(b)(6). . Systems's motion for leave to file a sur-reply is also GRANTED." }, { "docid": "4114477", "title": "", "text": "construed as stated. It is so ORDERED. . In pertinent part, Subsection 1498(a) of Title 28 provides: . The patent application was filed and granted before the effective date of the Leahy-Smith America Invents Act, Pub.L. No. 112-29, 125 Stat. 284 (2011). Consequently, in considering the issues in this case, the court relies upon the law in force at the time of issuance. See Tobinick v. Olmarker, 753 F.3d 1220, 1223 n. 1 (Fed. Cir.2014). . A subsequent opinion concerned discovery of documents claimed to be protected against disclosure by the attorney-client privilege. See Cormack v. United States, 118 Fed.Cl. 39 (2014) (\"Cormack II\"). . The government and Defendanl-Intervenor Northrop Grumman Systems Corp. filed a joint claim construction opening brief, see Defs.’ Opening Claim Construction Br. (“Defs.’ Br.”), ECF No. 65, and a joint responsive brief, see Defs.’ Claim Construction Reply Br. (\"Defs.' Reply”), ECF No. 73. , The specification essentially defines a single-pass method or system in these terms. See '693 patent, col. 1, lines 31-34 (\"When the sorting apparatus has the same number of required sort destinations as it has receiving bins, then the sorting process can be handled with a singlet Ipass of the mailpieces through the apparatus.\" (emphasis added)). .Plaintiff observes that reprocessing may be useful for purposes of calibration or sortation based on discrete criteria. Pl.’s Br. at 6. Plaintiff also suggests that the claimed machine may employ a continuous conveyor that allows some mailpieces to reenter the mailpiece scanning apparatus. Id. at 5. . Dr. Quine traced the development of mail sorting machines back to U.S. Patent 1,324,247, issued Dec. 9, 1919, based upon an application filed Dec. 3, 1913, entitled \"Mail-Distributing Apparatus.” See Quine Deck at 3-4. . Mr. Cormack objects to the court's consideration of part of Dr. Quine’s declaration. See Pl.’s Mot. to Strike Portions of Deck of Dr, Douglas Quine, ECF No. 69. Specifically, Mr. Cormack asks the court to elide paragraphs 49-106 of the Quine Declaration. Id. at 1. Those paragraphs encompass a commentary on the prosecution history of the '693 patent, Quine Deck ¶¶ 44-55, and opinions on" }, { "docid": "1594964", "title": "", "text": "Grumman Systems in that suit, Systems must possess more documents related to projected government cost-savings. See Pl.’s Mem. Supporting Mot. to Compel at 5. Systems counters that the government’s projected cost-savings were calculated by the government and Northrop Grumman Systems has no responsive documents other than those already produced. Def.-Intervenor’s Sur-Reply at 2-3. At the hearing, counsel for Systems reiterated that no other responsive documents exist and that Mr. Cormack is mistaken in believing that Northrop Grumman Systems ever produced marketing materials intended to convince the Postal Service of the cost-savings it could realize by use of FSS machines. Hr’g Tr. 55:8-23. He explained that the contract with the Postal Service was a fixed-price government contract. “The [Postal Service] was the one who identified the need. Northrop [Grumman Systems] did not have to sell the [Postal Service] on the idea that the FSS would be a beneficial device to have. What [Systems] had to do was competitively bid on the contract, and it won it, and it had to fulfill it.” Hr’g Tr. 55:14-19. Second, counsel has represented that the Postal Service made the statements regarding cost-savings, and Systems asked the Postal Service how it arrived at the amount of alleged cost savings. Hr’g Tr. 55:8-14. In response, Systems received the four documents that it has produced to Mr. Cormack. Id. The court cannot compel Northrop Grumman Systems to produce documents that it insists do not exist. Mr. Cormack’s motion to compel is denied as to this issue. CONCLUSION For the reasons stated, Northrop Grumman Systems’s motion to strike Mr. Cormack’s response to its motion for leave to file a sur-reply is GRANTED. Mr. Cormack’s counsel is directed to refile his response without reference to Exhibit 3. He is further directed to return or destroy the one remaining copy of Exhibit 3 that he has sequestered. Mr. Cormack’s motion to compel is GRANTED IN PART and DENIED IN PART. The motion to compel is GRANTED insofar as Northrop Grumman Systems is directed to produce documents in the possession of Solystie that relate to the FSS and other mail sorting machines" }, { "docid": "1594972", "title": "", "text": "time of Systems's proposal to the Postal Service. See Pl.'s Mem. Supporting Mot. to Compel Ex. 7, at 20. . Interrogatory No. 12 requests that Northrop Grumman Systems \"[i]dentify by Bates number all patent licenses and other agreements, as well as documents relating to or evidencing negotiations for a patent license or other agreements, where such documents relate to Mail Sorting Products and/or Mail Sorting Systems.” Pl.’s Mot. to Compel Ex. D, at 14. . Northrop Grumman Systems and the government noted that this same definition of mail sorting products and requests for documents were served on the Postal Service. Hr’g Tr. 46:6-14 (\"And the important note here is that arguments that you will hear no doubt from [Northrop Grumman Systems's counsel] will apply even more so to the United States Postal Service, whose business is mail sorting machines and mail sorting devices.\"); Hr’g Tr. 60:6-8 (\"Of course, essentially everything [the Postal Service] own[s] would qualify as a mail sorting product under that definition.”). . The early Scheduling Order issued in this case required the parties to identify their infringement contentions and non-infringement, unenforce-ability, and invalidity contentions by February 14, 2014 and March 28, 2014, respectively. See Scheduling Order of Nov. 14, 2013, ECF No. 33. . See, e.g., Samsung SDI Co., Ltd. v. Matsushita Elec. Indus. Co., Ltd., No. 05-8493-AG, 2007 WL 4302701, at *2-*3 (C.D. Cal. June 27, 2007) (relying heavily on interpretation of a local patent rule in denying a party’s motion to compel discovery related to nonaccused products). . For example, the bar code reader cited by Mr. Cormack’s counsel during the hearing on the pending motion, Hr’g Tr. 45:2-4, does not seem sufficiently similar to an FSS-type mail sorting machine to fall within an appropriate definition of \"mail sorting product” subject to document requests and interrogatories. .Mr. Cormack has not, however, withdrawn his motion to compel a further response by Systems to a related interrogatory seeking an analysis and summary of the documents provided. Interrogatory No. 16’ requests that Northrop Grumman Systems [¡Identify separately, for each of the years in the time period between January" }, { "docid": "1594930", "title": "", "text": "the exhibit and destroyed all copies save one, which he sequestered. See Pl.’s Opp’n to Def.-Intervenor’s Emergency Mot. to Strike Resp. to Mot. for Leave to File Sur-Reply (“Pl.’s Opp’n to Def.-Intervenor’s Mot. to Strike”) at 1 n. 1, ECF No. 53. On June 16, 2014, four days after Exhibit 3 was filed, Northrop Grumman Systems submitted a motion to strike the response by Mr. Cormack that included the e-mail as an exhibit. Def.-Intervenor’s Mot. to Strike; Def.-Intervenor’s Mem. in Support of its Mot. to Strike (“Def.-Intervenor’s Mem. Supporting Mot. to Strike”), ECF No. 49. Systems sought to claw back the email and to have Exhibit 3 and the responsive brief containing it stricken from the record. Def.-Intervenor’s Mem. Supporting Mot. to Strike at 1-2. Plaintiff resisted this motion, noting that RCFC 26(b)(5)(B) explicitly permits the court to view the pertinent document under seal and contesting the applicability of the attorney-client privilege or the work-product protection to the exhibit. See Pl.’s Opp’n to Def.-Intervenor’s Mot. to Strike at 1-10. Plaintiff also contended that Northrop Grumman Systems waived any applicable privilege or protection by not taking reasonable steps to prevent disclosure, as required by Fed.R.Evid. 502(b). Id. at 4-6, 8. Systems countered that it had taken reasonable steps to prevent disclosure, and its counsel submitted a sworn declaration describing the measures it took in that regard. Def.-Intervenor’s Reply in Support of Mot. to Strike at 3 & Ex. 1. Systems emphasized that it notified plaintiffs counsel of the mistaken disclosure within hours of discovering it. Id. at 4. A. Attorney-Client Privilege Claims of privilege are governed by the principles of the “common law as [] interpreted by United States courts in the light of reason and experience.” Fed.R.Evid. 501. The attorney-client privilege “protects the confidentiality of communications between attorney and client made for the purpose of obtaining legal advice.” Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409,1415 (Fed.Cir.1997) (emphasis added). The privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of" }, { "docid": "20849510", "title": "", "text": "By its motion to compel, Northrop Grumman Systems seeks production of Document Nos. 2, 17, 38-54, 59-73, 75-83, and 94-130 from the Second Privilege Log and Document Nos. 4-8 from the Third Privilege Log. Def.-Intervenor’s Mot. to Compel at 1 & n.l. These documents are described in the privilege logs as related to patent prosecution, and they all post-date the filing of the ’693 patent application. Id. at 1, 4-5. Northrop Grumman Systems argues that Mr. Cormack waived the attorney-client privilege as to these documents through his disclosure on April 28, 2014 of documents covering the same subject matter. Id. at 5. Mr. Cormack has resisted the motion by arguing that the documents sought by Northrop Grumman Systems do not cover the same subject matter as the documents he previously disclosed. Pl.’s Opp’n at 5-6. After Northrop Grumman Systems filed its reply, Def.-Interve-nor’s Reply in Support of Mot. to Compel (“Def.-Intervenor’s Reply”), ECF No. 61, a hearing on the motion to compel was held August 5,2014. STANDARDS FOR DECISION Rule 26(b) of the Rules of the Court of Federal Claims (“RCFC”) defines the scope of discovery to include “any non-privileged matter that is relevant to any party’s claim or defense.” RCFC 26(b)(1). “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Id. Discovery is limited by relevant privileges, including the attorney-client privilege. See RCFC 26(b)(1), (b)(3)(A). Federal Rule of Evidence 501 provides that the “ ‘common law — as interpreted by the United States courts in the light of reason and experience’ ” — shall govern claims of privilege in federal courts. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C.Cir.2014) (quoting Fed. R. Evid.501). “The attorney-client privilege protects the confidentiality of communications between attorney and client made for the purpose of obtaining legal advice.” Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1415 (Fed.Cir.1997). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of" }, { "docid": "1594954", "title": "", "text": "a manner that infringes the '693 Patent and were sold to the [government, Mr. Cormack would be entitled to amend his [e]omplaint to add those products to this case.” Pl.’s Mem. Supporting Mot. to Compel at 17. Additionally, Mr. Cormack asserts that information related to “non-FSS products that do not practice the method taught by the '693 Patent [is] useful to show the advantages and utility gained through the FSS’s use of Mr. Cormack’s patented invention,” which is relevant for determining damages in the form of a reasonable royalty. Pl.’s Mem. Supporting Mot. to Compel at 17 (citing Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116, 1119-20 (S.D.N.Y.1970)). Specifically, Mr. Cormack contends that Systems should be required to produce documents responsive to Document Request Nos. 3-10, 12-14, 16-19, and 31-32, and to provide a more complete response to Interrogatory No. 12. Id. at 18; see also Pl.’s Mot. to Compel Ex. E (Pl.’s First Set of Requests for Production of Documents and Things to Northrop Grumman Systems). These document requests and Interrogatory No. 12 generally seek detailed information related to the design, development, operation, and licensing of “each and every Mail Sorting Product and Mail Sorting System.” See, e.g., id. Ex. E, at 12, ¶¶ 3, 10 (“All documents and things which relate to or evidence the conception, development and/or design of each model or series of Mail Sorting Product and Mail Sorting Systems designed, manufactured, tested, used, or licensed by or for You for The United States of America in the United States in the time period from January 1, 2003 to the present.”). Northrop Grumman Systems opposes Mr. Cormack’s request, stating that “ ‘[n]on-FSS mail sorting products’ — i.e., all [Systems] products not accused of infringement in this action — have little or no relevance to the claims and defenses in this ease.” Def.-Intervenor’s Opp’n to Mot. to Compel at 6-7 (emphasis in original). Systems describes Mr. Cormack’s request as “an unprecedented expansion of the scope of this litigation and ... highly prejudicial.” Id. at 7. As a preliminary matter, the court cannot accept Northrop Grumman" }, { "docid": "1594968", "title": "", "text": "privileged or protected documents that were mistakenly produced. Id. Counsel for Systems said that they are currently investigating the reasons these other documents were produced, and ”[i]f need be, we will be submitting — if they challenge the privilege calls on those, we will be submitting affidavits.” Hr’g Tr. 30:16-18. Counsel for Mr. Cormack asserted that three of the documents subject to this larger claw-back request appear to be from productions that occurred before the production containing Exhibit 3. Hr’g Tr. 26:8 to 28:9; see also Hr’g Exs. 1, 2, which circumstance suggests that procedures put in place to prevent inadvertent disclosure were not fully functional. .Solystic is a wholly-owned subsidiary of NGC Denmark ApS, a company organized and existing under the laws of Denmark. NGC Denmark is 98.7% owned by Northrop Grumman International Holdings, B.V., a company organized and existing under the laws of the Netherlands, and 1.3% owned by Northrop Grumman Overseas Holdings, Inc., a Delaware corporation. Northrop Grumman International Holdings is a wholly-owned subsidiary of Northrop Grumman Overseas Holding, which is a wholly-owned subsidiary of Northrop Grumman Corporation. See Hr’g Ex. 3; Def.-Intervenor’s Mem. of Law in Opp’n to Pl.s' Mot. to Compel Discovery Responses (\"Def.-Intervenor’s Opp’n to Mot. to Compel”) at 12, ECF No. 40. . Solystic holds European Patent No. EP 2225049 A2, titled \"Method for Sorting Postal Items Using a Process for Sorting Outputs Dynamic Allocation.” See Pl.’s Mem. Supporting Mot. to Compel at 4. Before this patent was issued, an opposition proceeding required Solystic to confront the '693 patent. Id. at 5. . RCFC 34 is identical to Fed.R.Civ.P. 34. . In his initial Motion to Compel, Mr. Cormack inaccurately characterized Solystic as a wholly-owned subsidiary of Systems, arguing that Systems, as the parent corporation, had the requisite control to obtain and produce Solystic’s documents. Pl.'s Mem. Supporting Mot. to Compel at 19. That is incorrect, even though Systems concedes that both it and Solystic are wholly owned, albeit indirectly in Solystic’s case, by Northrop Grumman Corporation. See Hr’g Ex. 3. . The Court in Aerospatiale explained that although the Hague Convention procedures" }, { "docid": "1594963", "title": "", "text": "while acknowledging some production responsive to his request for documents related to cost-savings for the government, Mr. Cormack avers that more responsive documents must be in Systems’s possession. Pl.’s Reply Supporting Mot. to Compel at 4-5. Systems’s production consists of four documents, all originally created by the Postal Service, related to cost-savings to the government. Id. In support of the contention that more documents must exist, Mr. Cormack points to the ongoing breaeh-of-contract suit pending in this court between the United States and Northrop Grumman Systems related to the same FSS contract at issue in this case. Pl.’s Mem. Supporting Mot. to Compel at 13-14. In that case, the Postal Service is seeking reimbursement for cost-savings it did not realize due to delayed delivery of the FSS machines by Northrop Grumman Systems. See Answer to First Am. Compl. & Counterclaim ¶ 50, Northrop Grumman Systems Corp. v. United States, No. 12-286 (Fed.Cl. Nov. 26, 2012), ECF No. 15. In Mr. Cormack’s view, because cost- savings are at the heart of the government’s counterclaim against Northrop Grumman Systems in that suit, Systems must possess more documents related to projected government cost-savings. See Pl.’s Mem. Supporting Mot. to Compel at 5. Systems counters that the government’s projected cost-savings were calculated by the government and Northrop Grumman Systems has no responsive documents other than those already produced. Def.-Intervenor’s Sur-Reply at 2-3. At the hearing, counsel for Systems reiterated that no other responsive documents exist and that Mr. Cormack is mistaken in believing that Northrop Grumman Systems ever produced marketing materials intended to convince the Postal Service of the cost-savings it could realize by use of FSS machines. Hr’g Tr. 55:8-23. He explained that the contract with the Postal Service was a fixed-price government contract. “The [Postal Service] was the one who identified the need. Northrop [Grumman Systems] did not have to sell the [Postal Service] on the idea that the FSS would be a beneficial device to have. What [Systems] had to do was competitively bid on the contract, and it won it, and it had to fulfill it.” Hr’g Tr. 55:14-19. Second," }, { "docid": "1594944", "title": "", "text": "exhibit and filed a motion seeking to claw back the document and strike the relevant filing within four days. Def.-Intervenor’s Reply Supporting Mot. to Strike at 4. Given the alacrity of Systems’s response to discovering the mistaken disclosure, this court finds that Systems’s counsel acted promptly and therefore did not waive its claim of privilege on those grounds. Cf. Sikorsky, 106 Fed.Cl. at 586 (finding waiver where party asserting privilege waited ten months to assert it); Eden Isle Marina, 89 Fed.Cl. at 512-13 (finding waiver where party asserting privilege waited seven months to assert it). Systems asks that the court issue a claw-back order striking the e-mail from the record, requiring counsel for Mr. Cormack to destroy or return his single sequestered copy of the e-mail, and permitting Mr. Cormack’s counsel to refile the pertinent submission without reference to the e-mail. Def.-Intervenor’s Mem. Supporting Mot. to Strike at 6-7. Because the e-mail in question is protected under the work-product doctrine and Systems has not waived that protection, a claw-back order is appropriate. Pursuant to Fed.R.Evid. 502(b) and RCFC 26(b)(5)(B), Mr. Cormack’s counsel must destroy or return the sequestered copy of the e-mail. The filing containing Exhibit 3 will be stricken from the record, and Mr. Cormack is directs ed to resubmit that filing without reference to the e-mail. II. THE MOTION TO COMPEL A. Documents Possessed by Solystic, S.A.S. Mr. Cormack has requested that Systems produce documents in the apparent possession of Solystic, S.A.S. (“Solystic”), a wholly owned but indirect French subsidiary of the Northrop Grumman Corporation that designs and develops mail sorting systems and products. Pl.’s Mem. of Law in Support of Mot. to Compel Discovery Responses (“Pl.’s Mem. Supporting Mot. to Compel”) at 4, ECF No. 37-1. These documents, he contends, are relevant because Northrop Grumman Systems jointly developed the FSS machine with Solystic and incorporated components of Solystie’s TOP 2000, an automated flat sorting machine that preceded the FSS, into the FSS. Id. Moreover, Mr. Cormack argues that Solystic is familiar with his '693 patent because Solystic had to recognize and differentiate its work from the '693" }, { "docid": "20849507", "title": "", "text": "was being infringed by the United States Postal Service (“Postal Service”). See Cormack v. United States, 117 Fed.Cl. 392, 395-96, 2014 WL 3555255, at *1 (July 18, 2014) (addressing earlier discovery disputes). In particular, Mr. Cormaek alleges that mail sorting devices called Flats Sequencing Systems, manufactured by Northrop Grumman Systems and delivered to the Postal Service, infringe this patent. Id. Due to an indemnity clause in the Postal Service’s contract with Northrop Grumman Systems, the court granted Systems’s motion to intervene as a defendant-intervenor. Id., at *2. On November 14, 2013, the court held a preliminary scheduling conference during which the parties and the court developed an agreed schedule regarding discovery. See Scheduling Order, Nov. 14, 2013, ECF No. 33. Under this schedule, the government would produce source code to Mr. Cormaek by November 27, 2013. Id. By February 14, 2014, Mr. Cormaek would submit to the defendants his infringement contentions. Id. Six weeks later, by March 28, 2014, the defendants would submit their contentions of non-infringement, unenforeeability, and invalidity, along with an accompanying production of documents. Id. On April 30, 2014, Mr. Cormaek’s response to any invalidity contentions were due. Id. Following these deadlines, the court specified additional deadlines for a joint claim-construction statement and briefing on claim construction. Id. During discovery, Northrop Grumman Systems made document requests to Mr. Cormaek. See Def.-Intervenor Northrop Grumman Systems Corporation’s Mem. of Law in Support of Mot. to Compel Discovery of Documents from PI. (“Def.-Intervenor’s Mot. to Compel”) at 2 & Ex. 1, ECF No. 54. In response, Mr. Cormaek produced doeu- ments and submitted three privilege logs, dated October 31, 2013 (“First Privilege Log”), January 21, 2014 (“Second Privilege Log”), and February 3, 2014 (“Third Privilege Log”), which provided a brief description of documents withheld and the reasons they were withheld. Id. As part of his discovery disclosures, Mr. Cormack indicated that he conceived of the inventions claimed in the ’693 patent at least as early as August 2004. Id. Ex. 6 (Pl.’s Resp. to Def.-Interve-nor’s First Set of Interrog.), at 7. On March 28, 2014, as required by the court’s" } ]

[ { "docid": "6448025", "title": "", "text": "military, was at all times “subject to military discipline for any violations of these rules, regulations, and guidelines.” Bon, 802 F.2d at 1093. See also Mariano v. United States, 605 F.2d 721, 723 (4th Cir.1979) (“All military personnel, whether patrons or employees, were subject to discipline under the Uniform Code of Military Justice for their conduct in the [Officer’s] Club.”). Thus, Hodge’s employment at the MWR was subject to “direct military control” and as such was “incident to military service.” Bon, 802 F.2d at 1096. Therefore, Hodge’s employment falls within the doctrine of intramilitary immunity. This conclusion is not inconsistent with Johnson v. United States, 704 F.2d 1431 (9th Cir.1983). In Johnson, we held that the Feres doctrine did not bar a cause of action by an Air Force noncommissioned officer who was injured in an automobile accident near a military base. The plaintiff was injured during his off-duty time, after working at his on-base job as a bartender at the Noncommissioned Officers Club (“NCO Club”). He, along with some friends, had a party at the club after closing hours. The plaintiff was injured after he left the party when the car in which he was riding crashed into a tree. We held that the doctrine of intramilitary immunity did not bar recovery under the FTCA. First, at the time the government’s negligence occurred, Johnson was not subject in any real way to the compulsion of military orders.... The fact that Johnson was not under military control easily distinguishes the other cases that have concluded that activities in NCO clubs are incident to military service. In Mariano v. United States, 605 F.2d 721 (4th Cir.1979), for example, the plaintiff was employed during his off-duty hours as night manager of a Club. Plaintiff was injured while attempting to break up a fight between two patrons. In holding that the Feres doctrine barred plaintiffs suit, the court emphasized that official military regulations made the night manager responsible for maintaining order in the Club. Thus, the plaintiff in Mañano was subject to direct military control and was assigned specific duties as night manager" } ]

[ { "docid": "14847985", "title": "", "text": "2 (2d Cir.1976) (per curiam)). Under that test, Johnny Bozeman was on “active duty” at the time of his injury and was therefore subject to the Feres doctrine because he was not on furlough. See Feres, 340 U.S. at 146, 71 S.Ct. at 159. Plaintiff also claimed that the Feres doctrine does not apply because the injury occurred off the Depot despite the fact that the allegedly tortious conduct (serving alcohol to a drunken person who would foresee-ably drive a car and injure himself or another) occurred at the Depot. Citing Kohn and Camassar v. United States, 400 F.Supp. 894, 895 (D.Conn.1975), aff’d, 531 F.2d 1149 (2d Cir.1976), the district court expressed some concern that they seemed to make location of the accident site the dispositive factor in deciding whether to apply the Feres doctrine. In both of those cases, however, the challenged conduct of the government occurred on a military base. Camassar involved an automobile accident on a government owned pier; Kohn involved an alleged failure to supervise a soldier who later killed plaintiff’s decedent. The district court in this case, therefore, properly looked to the location of the alleged conduct that gave rise to tort liability in order to determine whether the Feres doctrine barred the suit. See United States v. Shearer, — U.S.-, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). This conclusion is reinforced by referring to other cases where the Feres doctrine has been applied to service members who were injured while taking part in government sponsored social or recreational activities and where the tort victims’ status as members of the armed forces determined their right to participate in those activities. See, e.g., Woodside v. United States, 606 F.2d 134, 142 (6th Cir.1979) (non-appropriated fund Air Force flying club; serviceman on leave at time of accident); Hass v. United States, 518 F.2d 1138, 1141-42 (4th Cir.1975) (horse rented from military riding stable; serviceman off duty); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (on-base swimming pool used for recreation; held, irrelevant whether serviceman was on leave). But cf. Johnson, 704 F.2d at 1438-41 (9th" }, { "docid": "3679700", "title": "", "text": "hospitalization or treatment.” 32 C.F.R. § 728.21(b). Further, this medical care “is authorized for such an injury ... beyond the period of training to the same extent as care is authorized for members of the Regular service.” Id. The existence and receipt of these medical and disability benefits by Jackson supports the application of the Feres doctrine in this case. D. The Nature of Jackson’s Activities Where a plaintiff is injured after visiting a social club or engaging in a recreational hike, his activity may be so unrelated to military matters that his tort suit is not barred. See Dreier, 106 F.3d 844 (hiking while off duty, no Feres bar); Johnson v. U.S., 704 F.2d 1431 (9th Cir.1983) (illegal party at NCO club; no Feres bar); cf. Bon, 802 F.2d 1092 (canoeing while off duty; Feres bar); Roush v. United States, 752 F.2d 1460 (9th Cir.1985) (injury at NCO club; Feres bar). But injury that flows from a serviceman’s engaging in a military activity supports application of Feres. Jackson argues that the tort occurred while he was being treated for an injury. Obtaining medical care is neither inherently military nor inherently civilian. However, we have held that Feres bars suits for medical malpractice even when the treatment was not for military-related injuries. See, e.g., Hata v. United States, 23 F.3d 230 (9th Cir.1994) (treatment of heart attack; noting that we have barred such claims “consistently”); Atkinson v. United States, 825 F.2d 202 (9th Cir.1987) (treatment of pregnancy). Here the treatment complained of was for an injury that was directly service-related. CONCLUSION Jackson’s initial injury and the subsequent treatment of it arose from his activities as a member of the Naval Reserve. His suit against the United States is barred by the Feres doctrine. This conclusion is buttressed by the four-factor test we have sometimes used in close cases: three factors strongly support barring the suit, and the fourth supports the bar, though not as clearly. The grant of summary judgment, construed as a dismissal for lack of jurisdiction, was proper. AFFIRMED. . Jackson's appeal to 32 C.F.R. § 728.21 is" }, { "docid": "3043163", "title": "", "text": "Feres is more likely to bar recovery when military personnel are injured on base. Here, Captain Kelly was injured off base, while sailing in the Canal. Third, we examine the activity being performed at the time of the injury to see if it served some military function. Parker, 611 F.2d at 1014. The Commission argues that we should follow the Ninth Circuit’s decision applying the Feres bar in a case in which a service member was injured when her canoe was struck by a motor boat near the Navy facility. Bon v. United States, 802 F.2d 1092 (9th Cir.1986). Bon had rented the canoe from the Navy’s Special Services Center and could only rent it by virtue of her status as a member of the military. Bon was subject to military discipline for violation of the Special Service rules governing the use of the facility and its equipment. In addition, the Special Services Center itself was directly under control of the commanding officer of the San Diego Naval Training Center. The Ninth Circuit found the presence of direct military control over the activity sufficient to establish that the activity was incident to service. Id. at 1096. This case is distinguishable from Bon. Here, the Commission has not shown that Kelly was directly subject to military control. Rather, Kelly was engaged in the purely recreational activity of sailing a catamaran rented from a civilian-run marina. Unlike the serviceperson in Bon, Kelly was sailing a privately owned catamaran, and no special military rules or regulations applied to govern the conditions of his sailing. See also, Elliott, 13 F.3d at 1563 (Feres does not bar claim of serviceman and his wife for injuries that occurred due to faulty venting system in a military-owned apartment in which they resided); Denham v. United States, 646 F.Supp. 1021 (W.D.Tex.1986); aff'd., 834 F.2d 518 (5th Cir.1987) (Feres does not bar claims of serviceman who was off-duty for the day and was injured in a diving accident due to Army Corps of Engineers’ negligent maintenance of swimming area). Moreover, this is not a situation in which military judgment" }, { "docid": "129564", "title": "", "text": "presumption is raised that the injury arose out of activities incident to military service. The rationale is that if he is on active duty status or on the base, he is presumably subject to military control. He can be recalled for duty at any time and is subject to the possibility of immediate orders. Chambers v. United States, 357 F.2d 224 (8th Cir. 1966); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff’d, 605 F.2d 721 (4th Cir. 1979). Theoretically, his off-duty time is not his own. But, this reasoning broadens the scope of the test needlessly, because almost all of the cases could have been decided on narrower grounds. For example, a decision by this Court stressed the importance of the serviceman’s active duty status and presence on base when the injury occurred, but this decision could have been restricted to a narrower holding. In Chambers v. United States, 357 F.2d 224 (8th Cir. 1966), the plaintiffs brought an action against the United States under the Federal Tort Claims Act seeking damages for the death of their son, Airman Third Class John G. Chambers. The decedent had drowned in a base swimming pool during his off-duty hours. This Court held that Feres applied and barred the claims, stating [t]he significant fact here is that Chambers was assigned to duty at the White-man Base, subject to the control of his military superiors. Even though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation, his claim would be subject to the Feres rule and no recovery permitted. 357 F.2d at 229. The language of the opinion indicates that the mere fact of being on active duty status and on base, thereby being subject to ultimate military control, is sufficient to bar the claim under Feres. However, the Court further stated that “[a]s a matter fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not" }, { "docid": "3113267", "title": "", "text": "less important and we look to the other factors.”). In this case, as in Kelly, the injury to Johnston occurred on a Sunday, while he was off duty for the weekend. Accordingly, consistent with Kelly, his duty status “is not a strong indicator of whether he was acting incident to service.” This court, then, must look to other factors. With respect to whether the location of the injury indicates that the activity is service-oriented, the Fifth Circuit in Kelly stated that “[w]hile there is no bright-line rule, Feres is more likely to bar recovery when military personnel are injured on base.” Id. at 597. However, as was expressly recognized in Parker, “the occurrence of an on-the-reservation injury ... does not immediately trigger application of Feres. If the injury occurred on the base, the Court must proceed to the further inquiry of what function the soldier was performing at the time of the injury in order to ascertain the totality of circumstances.” Parker, 611 F.2d at 1014; see also Whitley v. United States, 170 F.3d 1061, 1072 (11th Cir.1999) (“The location factor does not stand alone and is considered in conjunction with the service member’s activity at the time of injury.”). Once it is determined the service members’ duty might warrant allowing the action but that the injury occurred on the base, the court should go further and inquire into precisely what the person was doing when injured. Parker, 611 F.2d at 1014. In this case, despite the fact that the injury at issue occurred while Johnston was on base, the court ultimately is not persuaded under the “totality of the circumstances” that it occurred incident to his military service. At the time of his injury, Johnston was asleep while off duty for the weekend, a purely personal activity. See Elliott v. United States, 877 F.Supp. 1569, 1577 (M.D.Ga.1992) (characterizing watching television in home on base a “purely personal activity”). Based on the foregoing, the court concludes that the Government has failed to establish that Feres applies to bar plaintiffs claims. Accordingly, it is ordered that the government’s motion for summary" }, { "docid": "129611", "title": "", "text": "claims of servicepersons injured on a military base or while they were on active duty. In so doing, the courts have distorted the intent of Congress. It may be reasonable to presume that when a serviceperson is on base or on active duty status, he or she is engaged in an activity incident to service. The military is more than just a career or job; it is a way of life. Every aspect of servicepersons’ daily routine is affected by the military — their livelihood, living arrangements, meals, recreation, personal property, travel and medi cal care. However, any presumption raised by the situs of the injury or the serviceperson’s status must be rebuttable. The Feres Court did . not prohibit claims for injuries sustained by service personnel on active duty or on base — it only prohibited claims for injuries sustained “incident to service.” We must carefully scrutinize the facts of each case to determine what the serviceperson was actually doing at the time of the injury, or the Feres \"test” will be meaningless. If we give effect to the intent of Congress and apply Feres as it is written, we have no alternative but to reverse the decision of the District Court to grant summary judgment to the government. At the time of his death, Private Miller was not engaged in an activity incident to his service. He was working in a civilian capacity for a private contractor. He was off duty and had been given permission by his military superiors to work the part-time job. He was not involved in any military, mission or under compulsion of any military orders. He was not availing himself of a privilege acquired by virtue of his military status. He was subject to the direct control and authority of his civilian employer, not his military superiors. This case presents a factual setting clearly not comparable to those of cases previously decided under the Feres doctrine. Part-time independent employment is not a normal part of military life. The military is responsible for providing recreational, cultural and athletic activities to promote the morale and" }, { "docid": "11022931", "title": "", "text": "and concluded that the claim was barred because “Feres can only be explained on the ground that the enforcement-of army discipline in general is more difficult if persons involved in enforcing discipline may be treated as the causative agents of suits against the United States brought by persons who are subjects of army discipline.” 324 F.Supp. at 1088. We affirmed in a three sentence opinion, concluding that Feres barred Coffey’s claim. 455 F.2d 1380. Note, however, that we later deemphasized the importance of the location of the alleged negligence of the government in Johnson, 704 F.2d at 1436-37. Two more recent cases bear factual similarities to the case at bar and further complicate our analysis. In Bon, the plaintiff was on active duty with the United States Navy when injured. The accident occurred on or near a Navy Special Services facility at the Naval Training Center in San Diego. Bon and another individual were in a canoe rented from the Special Services Center. Her injuries occurred when a motor boat owned by the Government struck her canoe. The motor boat had also been rented from Special Services and was operated by an active duty service member. Both Bon and the operator of the motor boat were on authorized liberty and were not engaged in official duties. The Naval Special Services Center is operated by the Naval Training Center and is under the direct responsibility of the commanding officer of the Naval Training Center. The purpose of the Special Services Center is to “provide for Navy personnel and their dependents a varied program of wholesome and constructive off-duty leisure and recreation activities which will effectively contribute to the mental and physical well being of the participants.” (Special Services Recreation Manual). Base rules and regulations govern the rental and operation of boats at the Naval Training Center. In addition, Special Service Department guidelines also govern the rental services. At all times relevant, both Bon and the operator of the motor boat were subject to military discipline for any violations of these rules, regulations, and guidelines. 802 F.2d at 1093 (footnote omitted). Looking" }, { "docid": "3043164", "title": "", "text": "presence of direct military control over the activity sufficient to establish that the activity was incident to service. Id. at 1096. This case is distinguishable from Bon. Here, the Commission has not shown that Kelly was directly subject to military control. Rather, Kelly was engaged in the purely recreational activity of sailing a catamaran rented from a civilian-run marina. Unlike the serviceperson in Bon, Kelly was sailing a privately owned catamaran, and no special military rules or regulations applied to govern the conditions of his sailing. See also, Elliott, 13 F.3d at 1563 (Feres does not bar claim of serviceman and his wife for injuries that occurred due to faulty venting system in a military-owned apartment in which they resided); Denham v. United States, 646 F.Supp. 1021 (W.D.Tex.1986); aff'd., 834 F.2d 518 (5th Cir.1987) (Feres does not bar claims of serviceman who was off-duty for the day and was injured in a diving accident due to Army Corps of Engineers’ negligent maintenance of swimming area). Moreover, this is not a situation in which military judgment or military discipline is called into question. In a recent discussion of Feres, the Supreme Court emphasized that one important consideration in determining whether Feres bars a suit is “whether the suit requires the civilian court to second-guess military decisions.” United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985). In Shearer, the family member of a serviceman murdered by another serviceman sued alleging that the military was negligent in failing to warn about the murderer’s past record of violence. The Court held that this claim was barred by Feres because “it calls into question basic choices about discipline, supervision, and control of a serviceman.” Id. at 58, 105 S.Ct. at 3043. Kelly’s claim, on the other hand, does not. Captain Kelly was off-duty, off-base and engaged in a purely leisure activity that served no military purpose or function. Unlike the situation in Shearer, Kelly’s suit does not affect military discipline or involve military judgment. Instead, the suit involves the Panama Canal Commission’s negligence in hanging electrical wires in" }, { "docid": "14807966", "title": "", "text": "of sovereign immunity, is likewise jurisdictional.” Brown v. United States, 151 F.3d 800, 804 (8th Cir.1998); accord Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C.Cir.2004). In Feres v. United States, the Supreme Court recognized an exception to the FTCA’s broad waiver of sovereign immunity in tort actions, holding that “the Government is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). This Circuit has developed a three-part incident-to-service test to determine whether an activity giving rise to an injury is, in fact, “incident to service” under Feres. Id. Courts are to consider “the injured service member’s duty status, the site of the injury!,] and the nature of the activity engaged in by the service member at the time of his injury.” Schnitzer, 389 F.3d at 203 (citing Verma v. United States, 19 F.3d 646, 648 (D.C.Cir.1994)). The Supreme Court has cautioned, however, that “[t]he Feres doctrine cannot be reduced to a few bright-line rules” and that “each ease must be examined in light of’ development of the doctrine in caselaw. United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). The Court will therefore apply the incident-to-service factors with particular consideration given to medical-malpractice precedent of this Circuit. This District held only one year ago that “[m]edical treatment of military personnel at a military hospital undoubtedly satisfies the ‘incident to service’ requirement.” Singleton v. Dep’t of the Army, No. 07-CV-303 (AK), 2007 WL 2601934, at *3 (D.D.C. Sept. 6, 2007). Singleton relied on an earlier case in our District, Antoine v. United States, which held that the mere fact that the plaintiff brought “a tort claim against the Government for injuries alleged to have occurred due to the negligence of military doctors working at military medical facilities and performing official duties” necessitated application of the Feres doctrine to bar recovery. 791 F.Supp. 304, 306 (D.D.C.1992); see also Misko v. United States, 453 F.Supp. 513, 514 (D.D.C.1978) (“[T]ortious acts against an" }, { "docid": "10491902", "title": "", "text": "using military medical facilities or participating in recreational activities sponsored by the military, Johnson held a paying job at the NCO Club. The job is identical with those routinely performed by civilian bartenders. Indeed, Johnson’s after-hours employment at the NCO Club cannot logically be distinguished from second jobs held by other off-duty military personnel. See, e.g., Mills v. Tucker, 499 F.2d 866 (9th Cir.1974) (Navy petty officer can sue government under FTCA for injuries sustained on military road while returning to base from his off-duty job as a cook). Thus, to characterize Johnson’s moonlighting during his off-duty hours as a benefit incident to military service would distort both precedent and the rationale underlying Feres. Johnson, 704 F.2d at 1439. In contrast, the instant case involves a benefit and privilege incident to the plaintiff’s military service and thus falls squarely within the category of cases to which the Fourth Circuit has applied the Feres doctrine. E.g., Yolken, 590 F.2d 1303; Haas, 518 F.2d 1138; Buckingham, 394 F.2d 483; Brodine, 735 F.2d 1353. Moreover, this is an action, where the defendants’ alleged wrongful conduct occurred as a result of a “decision requiring military expertise or judgment” and thereby implicates a concern for military discipline, the most persuasive rationale for applying the Feres doctrine to suits against the various branches of the armed services. See Johnson, 704 F.2d at 1438, 39. Therefore, the case now before the Court is certainly one to which the Feres doctrine should be applied according to controlling Fourth Circuit precedent. Furthermore, the reasoning of the Ninth Circuit in Johnson does not suggest a contrary result. Although this Court must accept the allegations in the complaint as true for the purpose of resolving a motion to dismiss, 5 Wright and Miller, Federal Practice and Procedure: Civil § 1357 at 594 (1969) (numerous citations omitted), the plaintiff’s claims against the United States Department of the Army nonetheless must be dismissed because this defendant is not subject to suit under the FTCA. Feres, 340 U.S. 135, 71 S.Ct. 153; see, e.g., Yolken, 590 F.2d 1303. Consequently, the plaintiff has failed to" }, { "docid": "129565", "title": "", "text": "under the Federal Tort Claims Act seeking damages for the death of their son, Airman Third Class John G. Chambers. The decedent had drowned in a base swimming pool during his off-duty hours. This Court held that Feres applied and barred the claims, stating [t]he significant fact here is that Chambers was assigned to duty at the White-man Base, subject to the control of his military superiors. Even though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation, his claim would be subject to the Feres rule and no recovery permitted. 357 F.2d at 229. The language of the opinion indicates that the mere fact of being on active duty status and on base, thereby being subject to ultimate military control, is sufficient to bar the claim under Feres. However, the Court further stated that “[a]s a matter fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not have been privileged to use it.” 357 F.2d at 229. This reasoning represents a much narrower holding, but also a much more logical one. The injury arose out of activities incident to service because the decedent would not have been privileged to use the pool but for his military status. The holding in Chambers was further clarified in Alexander v. United States, 500 F.2d 1 (8th Cir. 1974), cert.denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975). In Alexander, Chambers was interpreted to hold “that as long as the serviceman was engaged in an activity ‘related to and dependent upon his military service' while ‘subject to military control,’ any consequent injury would be ‘incident to service.’ ” 500 F.2d at 5, quoting from Chambers v. United States, 357 F.2d at 229 and note 4. The Court’s interpretation of Chambers in Alexander properly puts the emphasis on what he is doing at the time of injury instead of on where he is or what his status is. It is understandable why so many courts" }, { "docid": "9458005", "title": "", "text": "at 1436-37, and does not overcome the factors in this case that weigh to the contrary. Beyond just Bon, it has long been recognized — in our court, at least — that military-sponsored activities fall within the Feres doctrine, regardless of whether they are related to military duties. Thus, in Uptegrove v. United States, we held that the family of Uptegrove (a soldier) could not sue the military for Uptegrove’s death in a military plane crash, despite the fact that Uptegrove was on leave, on his way to vacation with his family, and aboard the military aircraft only as a “space available” passenger. 600 F.2d 1248, 1249 (9th Cir.1979). Likewise, in the context of medical malpractice suits, we have consistently barred suit — even when the injury did not arise out of the course of duty. See, e.g., Estate of McAllister, 942 F.2d at 1474; Persons v. United States, 925 F.2d 292, 296 (9th Cir.1991) (“Although he was off-duty, Kelly Persons enjoyed the use of the naval hospital ‘solely by virtue of his status as a serviceman,’ Millang, 817 F.2d at 535, and the doctors who treated him were subject to military orders.”); Atkinson v. United States, 825 F.2d 202 (9th Cir.1987) (barring a medical malpractice suit arising from the prenatal care given to a soldier in a military hospital). Indeed, the Feres case itself involved medical malpractice. Cases from outside the Ninth Circuit mirror this approach. In a range of factual situations, the courts of appeals have held that recreational activities sponsored by the military fall within the Feres doctrine. See, e.g., Pringle v. United States, 208 F.3d 1220, 1227 (10th Cir.2000) (soldier beaten by gang members after being ejected from military MWR club; “The relationship between the Army and service personnel engaged in recreational activities under the Army’s MWR program is ‘distinctively federal’ in character.”); Jones v. United States, 112 F.3d 299, 301 (7th Cir.1997) (medical malpractice suit against military physicians arising from an injury suffered while training for the Olympics; “In fact, courts have often concluded military personnel acted ‘incident to service’ and applied the Feres bar" }, { "docid": "3113268", "title": "", "text": "1072 (11th Cir.1999) (“The location factor does not stand alone and is considered in conjunction with the service member’s activity at the time of injury.”). Once it is determined the service members’ duty might warrant allowing the action but that the injury occurred on the base, the court should go further and inquire into precisely what the person was doing when injured. Parker, 611 F.2d at 1014. In this case, despite the fact that the injury at issue occurred while Johnston was on base, the court ultimately is not persuaded under the “totality of the circumstances” that it occurred incident to his military service. At the time of his injury, Johnston was asleep while off duty for the weekend, a purely personal activity. See Elliott v. United States, 877 F.Supp. 1569, 1577 (M.D.Ga.1992) (characterizing watching television in home on base a “purely personal activity”). Based on the foregoing, the court concludes that the Government has failed to establish that Feres applies to bar plaintiffs claims. Accordingly, it is ordered that the government’s motion for summary judgment is denied. . The government maintains that this facts of this case are substantially the same as those of Feres, in which the decedent, an army lieutenant, while on active duty in the service of the United States, was killed by fire in a barracks in Pine Camp, New York, a military post of the United States in which he had been required to be quartered by superior officers. The complaint alleged negligence on the part of the officers who required the deceased to be quartered in barracks which they knew or should have known to be unsafe due to a defective heating plant and in failing to maintain an adequate fire watch. Feres, 340 U.S. 135, 137, 71 S.Ct. 153, 155, 95 L.Ed. 152. It maintains, therefore, that it must be concluded that plaintiff’s suit is barred by Feres. Plaintiff, on the other hand, insists that this case is \"on all fours” with Elliott v. United States, 37 F.3d 617 (11th Cir.1994), in which an equally divided Eleventh Circuit affirmed the district court's" }, { "docid": "4430454", "title": "", "text": "(1975). Generally, an off-duty serviceman not on the military base and not engaged in military activity at the time of injury, can recover under FTCA; an on-duty serviceman, however, is usually barred from recovery. In Brooks, an off-duty serviceman hit by a military vehicle while he was engaged in personal business recovered under FTCA. U.S. v. Brooks, 337 U.S. at 50-52, 69 S.Ct. at 919-920. In Feres, on the other hand, an on-duty serviceman killed in an on-base fire was barred from recovery. Feres v. U.S., 340 U.S. at 136-38, 146, 71 S.Ct. at 154-55, 159. In this case, appellant argues that the district court improperly applied the Feres doctrine to their claim. Specifically, they argue that the court neglected to focus on Shearer’s activity and status at the time and place of his injury. On review, the record indicates that Shearer was not engaged in or acting incident to any military . activity at the time of his murder. To the contrary, Shearer was on leave in another state (New Mexico) when he was kidnapped. ' The United States does not dispute that Shearer was on authorized leave and off the base at the time of his murder. The district court’s error stems from its singular focus on the status and activity of the allegedly negligent parties (i.e. Heard’s superior officers) without considering the status and activity of the injured party. Consequently, the district court improperly concluded that appellant’s “allegations relate directly to decisions of military personnel made in the course of the performance of their military duty and, therefore are barred.” App. at 25a. In support of its conclusion, the district court erroneously relied on Johnson v. U.S., 631 F.2d 34, 36-37 (5th Cir.1980) and Henning v. U.S., 446 F.2d 774, 777 (3d Cir.1971). These two cases did not adopt a tortfeasor status-activity analysis as the lower court suggested. Instead these cases merely restated a basic Feres doctrine rule: Malpractice to an active duty soldier in an army hospital is, by its very nature, considered activity “incident to military service,” and therefore barred under Feres. Both Johnson and" }, { "docid": "129575", "title": "", "text": "even though injury occurred on military base). . See generally, cases cited supra notes 6 and 7. . Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (claim barred under Feres because of claimant’s active duty status and presence on base, even though engaged in off-duty recreation); Knoch v. United States, 316 F.2d 532 (9th Cir. 1963) (malpractice claim barred under Feres even though claimant was on active duty status for purposes of physical examination only); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff'd, 605 F.2d 721 (4th Cir. 1979) (claim barred under Feres because of claimant’s active duty status and presence on base even though injury occurred during off-duty hours); Frazier v. United States, 372 F.Supp. 208 (M.D.Fla.1973) (during normal duty hours, claimant was injured while on personal business by a nonmilitary government employee; claim barred because it is the status of the claimant, not the status of the tortfeasor, which controls). . [E]ven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then . . he will be barred from suing the Government. Herreman v. United States, 332 F.Supp. 763 at 766 (E.D.Wis.1971). See also, Shults v. United States, 421 F.2d 170 (5th Cir. 1969) (serviceman was injured while on leave and he was brought to naval hospital where he died of alleged malpractice; held: administrator’s claim was barred because deceased would not have been in a military hospital but for his military status); Buer v. United States, 241 F.2d 3 (7th Cir. 1956), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954) (claimants had passes, were in civilian clothes and on personal business when injury occurred on base; held: claims were barred under Feres because claimants were under military jurisdiction); Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99" }, { "docid": "3679699", "title": "", "text": "application of the Feres doctrine. Because Jackson was a member of the Naval Reserve at all times relevant to his FTCA claim, we conclude that his military status at the time of the alleged negligence lends some support to the application of the Feres bar. C. Benefits Jackson Received It is undisputed that Jackson received military disability compensation for the injury to his hand and subsequent complications following the nerve harvesting from his ankle from April 27, 1992, through October 27, 1992, and from January 30, 1993, through February 1993. It is also undisputed that Jackson received cost-free treatment at the Naval Hospital at Camp Pendleton and cost-free microsurgery nerve grafting and nerve harvesting at the Naval Medical Center in San Diego as a benefit of service in the Naval Reserve and pursuant to Jackson’s military benefits. Because the injury to Jackson’s hand was incurred incident to his military service, he was “entitled to medical ... care appropriate for the treatment of that injury ... until the resulting disability cannot be materially improved by further hospitalization or treatment.” 32 C.F.R. § 728.21(b). Further, this medical care “is authorized for such an injury ... beyond the period of training to the same extent as care is authorized for members of the Regular service.” Id. The existence and receipt of these medical and disability benefits by Jackson supports the application of the Feres doctrine in this case. D. The Nature of Jackson’s Activities Where a plaintiff is injured after visiting a social club or engaging in a recreational hike, his activity may be so unrelated to military matters that his tort suit is not barred. See Dreier, 106 F.3d 844 (hiking while off duty, no Feres bar); Johnson v. U.S., 704 F.2d 1431 (9th Cir.1983) (illegal party at NCO club; no Feres bar); cf. Bon, 802 F.2d 1092 (canoeing while off duty; Feres bar); Roush v. United States, 752 F.2d 1460 (9th Cir.1985) (injury at NCO club; Feres bar). But injury that flows from a serviceman’s engaging in a military activity supports application of Feres. Jackson argues that the tort occurred while" }, { "docid": "14847986", "title": "", "text": "decedent. The district court in this case, therefore, properly looked to the location of the alleged conduct that gave rise to tort liability in order to determine whether the Feres doctrine barred the suit. See United States v. Shearer, — U.S.-, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). This conclusion is reinforced by referring to other cases where the Feres doctrine has been applied to service members who were injured while taking part in government sponsored social or recreational activities and where the tort victims’ status as members of the armed forces determined their right to participate in those activities. See, e.g., Woodside v. United States, 606 F.2d 134, 142 (6th Cir.1979) (non-appropriated fund Air Force flying club; serviceman on leave at time of accident); Hass v. United States, 518 F.2d 1138, 1141-42 (4th Cir.1975) (horse rented from military riding stable; serviceman off duty); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (on-base swimming pool used for recreation; held, irrelevant whether serviceman was on leave). But cf. Johnson, 704 F.2d at 1438-41 (9th Cir.1983) (off-duty serviceman employed as bartender injured following after-hours party in NCO club; held that military discipline did not apply to situation, but result would be different if plaintiff had been a patron of the NCO club); Stephan v. United States, 490 F.Supp. 323, 327 (W.D.Mich.1980) (party on a military reservation at a lake distant from base itself; serviceman off duty at time of injury). Johnny Bozeman was only entitled to be in the NCO club because he had an appropriate rank, was a member of the Army and was on active duty status. The application of the Feres doctrine to these facts is thus consistent with the cases decided on similar facts. We also note that the “alternative compensation” discussed in Feres is present in this case: Mrs. Bozeman received the serviceman’s survivor benefits. Although this factor is “no longer controlling,” United States v. Shearer, — U.S. at- n. 4, 105 S.Ct. at 3043 n. 4, it makes the outcome in this case more palatable. See Hunt v. United States, 636 F.2d 580, 598" }, { "docid": "10491901", "title": "", "text": "as a bartender at an NCO club and who was returning from an after-hours party at the club was injured in an automobile accident on a military base. In a well reasoned opinion, the Johnson court recognized that active duty service members injured by the medical malpractice of military doctors usually have been barred from suing under the FTCA because their injuries have been considered to be “incident to service;” the plaintiffs would not have been privileged to take advantage of the [medical] benefits but for their military status.” Id. at 1438-39 (citation omitted). The court distinguished the case before it from those cases in which recovery had been denied because the alleged injury arose out of the enjoyment of those benefits accruing from the plaintiffs military status. It determined that the dispositive factor in the military medical malpractice cases did not preclude recovery in the case because: Johnson’s employment at the NCO Club during his off-duty hours can hardly be characterized as a privilege or benefit incident to his military service. Unlike the soldiers using military medical facilities or participating in recreational activities sponsored by the military, Johnson held a paying job at the NCO Club. The job is identical with those routinely performed by civilian bartenders. Indeed, Johnson’s after-hours employment at the NCO Club cannot logically be distinguished from second jobs held by other off-duty military personnel. See, e.g., Mills v. Tucker, 499 F.2d 866 (9th Cir.1974) (Navy petty officer can sue government under FTCA for injuries sustained on military road while returning to base from his off-duty job as a cook). Thus, to characterize Johnson’s moonlighting during his off-duty hours as a benefit incident to military service would distort both precedent and the rationale underlying Feres. Johnson, 704 F.2d at 1439. In contrast, the instant case involves a benefit and privilege incident to the plaintiff’s military service and thus falls squarely within the category of cases to which the Fourth Circuit has applied the Feres doctrine. E.g., Yolken, 590 F.2d 1303; Haas, 518 F.2d 1138; Buckingham, 394 F.2d 483; Brodine, 735 F.2d 1353. Moreover, this is an" }, { "docid": "12053632", "title": "", "text": "Contentions on Appeal The sole issue on appeal is whether the Feres doctrine bars Bon’s claim for relief. Bon claims that the Feres doctrine does not apply because (1) at the time of the accident she was officially off-duty and the recreational activities in which she was engaged were in no way related to her official duties, and (2) neither she nor the other off-duty service member involved in the accident was subject to military discipline or was participating in activities under direct military command. The Government contends that Bon and the other service member involved in the accident were en gaged in an activity which has an express military purpose and which is governed by military regulations and rules. Consequently, the Government argues, the district court correctly applied the Feres doctrine. III. Standard of Review This court reviews de novo the district court’s dismissal of Bon’s complaint for lack of subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983) (citing Phoenix Title & Trust Co. v. Stewart, 337 F.2d 978, 985 (9th Cir.), cert. denied, 380 U.S. 979, 85 S.Ct. 1335, 14 L.Ed.2d 273 (1964)). IV. The Feres Doctrine Under the Feres doctrine courts lack subject matter jurisdiction to adjudicate claims by members of the armed services where the injuries complained of “arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. This court has held that the determination of whether an activity is incident to service must focus on the potential impact of a civil action on military discipline. Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983). Thus, “the most important line of inquiry [is] the nature of the plaintiff’s activities at the time of the government’s tortious action.” Id. The Supreme Court has recently confirmed this approach. United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). Application of the Feres doctrine necessarily involves a case-by-case analysis. Id. at 3043. In Johnson this court looked to the following four factors to determine whether an activity" }, { "docid": "6433948", "title": "", "text": "in the interpretation of the term “incident to service” in determining whether to allow recovery, hinges on the activity in which the plaintiff or injured service member was involved at the time of the injury. In a recent case, the Ninth Circuit has considered the issue and has more clearly defined the factors it considers in reaching a conclusion. Johnson v. United States, 704 F.2d 1431 (9th Cir.1983). In Johnson, the court considered four factors in determining whether the injured service member’s activities at the time of the injury are such as to provoke the operation of Feres. Johnson, Id. First, the court considers the place where the negligent act allegedly occurred, noting that “government negligence on a military base should not absolutely bar recovery.” Ids. at 1436. With this analysis, the court expressly rejected a rationale it had used in a 1979 case, in which it distinguished between acts which occur “on-base” and those which occur “off-base.” Troglia v. U.S., 602 F.2d 1334, 1339 (9th Cir.1979). See, e.g., Bryson, Id.; Downes v. U.S., 249 F.Supp. 626 (E.D.N.C.1965); Rich v. U.S., 144 F.Supp. 791 (E.D.Pa.1956); Nowotny v. Turner, 203 F.Supp. 802 (M.D.N.C.1962). Instead, the court mandated that the circumstances surrounding the actual activity of the injured party must be considered. Johnson at 1437. The second factor considered is the duty status of the plaintiff at the time of the injury. Id. While the court conceded that duty status is not dispositive, it is a mandatory consideration to the extent that it relates to the nexus between the activity and military service. Id., see, e.g., Troglia, Id.; Woodside, Id. In Johnson, a case first heard in U.S. District Court for the District of Montana, the injured service member was off duty at the time of the injury; there was no relationship between his service and the activity. Johnson, Id. Third, the court considered the benefits of military service which accrue to the service member because of his status. Id. at 1439. The critical concern with this factor is whether the plaintiff was enjoying a purely military benefit at the time of" } ]

[ { "docid": "10857845", "title": "", "text": "Ario did not argue that “he was trying under Rule 11(b)(2) to extend or modify existing law, or create new law,” the Court decided that the imposition of attorney’s fees was an appropriate sanction. It also determined that the Rule 11 sanction would fall on Ario’s attorneys alone (and not on Ario). However, the District Court did not find a Rule 11 violation on account of the filings contesting the arbitration award because, in the Court’s view, it was “legally and objectively reasonable” for Ario to challenge the award on the basis that Mr. Crane had no personal recollection of the circumstances leading up to the reinsurance agreements. These consolidated cross-appeals followed. II. Jurisdiction and Standards of Review As we explain below, the District Court had jurisdiction under 9 U.S.C. §§ 203 and 205. We have jurisdiction over the consolidated appeals under 28 U.S.C. § 1291. We exercise plenary review over the denial of a motion to remand to the extent that the underlying basis is a legal question, as it is here. Werwinski v. Ford Motor Co., 286 F.3d 661, 665 (3d Cir.2002). In reviewing a district court’s order confirming an arbitration award, we assess its factual findings for clear error and its legal conclusions de novo. China Minmetals Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 278 (3d Cir.2003). We review a district court’s decision to grant or deny Rule 11 sanctions for abuse of discretion. Simmerman v. Corino, 27 F.3d 58, 61 (3d Cir.1994). This means “we evaluate the court’s factual determinations, legal conclusions, and choice of an ‘appropriate sanction’ with substantial deference, considering not whether we would make the same precise determinations, but only whether those determinations are contrary to reason or without a reasonable basis in law and fact.” Id. at 62. An example of abuse of discretion occurs when a district court “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (citation omitted) (internal quotation marks omitted). III. Analysis A. Removal to federal court was proper under 9 U.S.C. §" } ]

[ { "docid": "22083781", "title": "", "text": "to a fatal heart attack. The Smiths brought this action in the district court pursuant to 42 U.S.C. § 1983, alleging that the defendants violated Smith’s rights under the First, Fourth, and Fourteenth Amendments. The Smiths also included wrongful death, survival and intentional infliction of emotional distress claims under state law. After extensive discovery proceedings, the defendants moved for summary judgment on July 27, 2001, both on the merits and on the basis of qualified immunity. On September 17, 2001, the district court granted the Smiths’ motion to extend discovery pursuant to Fed.R.Civ.P. 56(f), but on October 12, 2001, the district court denied the Smiths’ appeal from an order of the magistrate judge denying their request to take more than ten depositions, a limitation the magistrate judge earlier had imposed. On November 15, 2001, the district court denied the Smiths’ renewed motion to take additional depositions and for an extension of time for discovery and then, on November 30, 2001, denied the Smiths’ renewed Rule 56(f) motion. On January 14, 2001, the district court again denied the Smiths’ renewed motions to take additional depositions and to extend discovery, granted the defendants’ motion for summary judgment on all section 1983 claims on the merits mentioning, but not predicating its decision on, the qualified immunity arguments. The court dismissed the state law claims without prejudice. This appeal followed. II. JURISDICTION AND STANDARD OF REVIEW A. JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 in that the complaint alleged federal civil rights claims under 42 U.S.C. § 1983 and supplemental state law claims. On January 14, 2002, the district court entered final judgment in the case, and on February 8, 2002, the Smiths timely filed their notice of appeal. We therefore have jurisdiction pursuant to 28 U.S.C. § 1291. B. STANDARD OF REVIEW We exercise de novo review of the district court’s grant of summary judgment. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). We review questions concerning the scope of discovery for abuse of discretion. See Brumfield v. Sanders, 232 F.3d 376, 380" }, { "docid": "23098396", "title": "", "text": "vague and conclusory. Similarly, the District Court held that Renehenski could not sustain his Sixth Amendment claim because the provisions of Pennsylvania’s code he cited to — 42 Pa. Cons.Stat. § 9791 et seq. — related to the sex offender registration laws and not to the issues raised in his complaint. Next, the District Court rejected Renchenski’s Eighth Amendment claim, holding that while a cruel and unusual punishment claim may be predicated on emotional injury, Renehenski failed to establish that Defendants were aware that a substantial risk of serious harm existed and deliberately disregarded that risk. Accordingly, the District Court granted summary judgment in Defendants’ favor on all counts and denied Renehenski’s motion for leave to file a third amended complaint. Renehenski filed a pro se appeal, and we appointed pro bono counsel. II. The District Court exercised jurisdiction over Renchenski’s claims under 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s disposition of a summary judgment motion de novo. See Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). “We apply the same standard as the District Court: Summary judgment is appropriate only where, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Melrose Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir.2010) (citation & internal quotation marks omitted). “The mere existence of some evidence in support of the nonmovant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the nonmovant on the issue.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009) (citation omitted). We review a district court decision refusing leave to amend a complaint pursuant to Federal Rule of Civil Procedure 15(a) for abuse of discretion. See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). III. Renchenski raises several substantive challenges and one procedural challenge to the District" }, { "docid": "18019486", "title": "", "text": "and unlawful restraint of trade under the New York State Donnelly Act. The PAC also included an additional rule of reason claim for illegal information sharing. In addition to the 27 telephone conversations that Burtch pled in the original Complaint, the PAC alleges 33 more telephone conversations amongst the original Defendants. The additional 33 conversations, much like the conversations in the original Complaint, are allegations that the Factors exchanged information about existing credit limits with Factory 2-U as well as their individual decisions to decline credit or withhold orders. Included in the additional allegations is information regarding Factory 2-U’s delayed payments to individual Factors. The PAC expanded upon the original Complaint by adding allegations of the status of the Defendants’ credit lines to Factory 2-U in January 2002, prior to any known alleged collusion, in July 2003, and in November and December 2003 when Factory 2-U was forced out of business. On June 4, 2010, the District Court denied the Motion, declining to re-open the judgment and denying leave to amend. The District Court concluded that Rule 59 governs post-judgment requests for leave to amend and Burtch failed to allege any of the requirements of Rule 59(e). Burtch filed a timely appeal. II. JURISDICTION AND STANDARD OF REVIEW We exercise plenary review of the District Court’s grant of a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010) (citation omitted). The District Court’s denial of a motion to amend, pursuant to Federal Rule of Civil Procedure 15(a), is reviewed for abuse of discretion. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). We review the District Court’s denial of a Rule 59(e) motion to amend the complaint for abuse of discretion, In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 280 (3d Cir.2004), but we review the District Court’s underlying legal determinations de novo and factual determinations for clear error, Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir.2010). III. ANALYSIS 1. Motion to Dismiss A complaint may be dismissed" }, { "docid": "23139107", "title": "", "text": "opportunity after she complained of harassment by a supervisor, can be construed to support a reasonable inference of a causal connection between the protected act and the adverse employment action. Therefore, even if one believed it “unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits,” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955), it must still be said that Connelly— under a favorable standard of review — has raised a reasonable inference that discovery will reveal evidence of the elements necessary to establish her claims. III. Conclusion Because Connelly has alleged facially plausible claims sufficient to survive a motion to dismiss, we will vacate the District Court’s Order dismissing the Amended Complaint and remand for further proceedings consistent with this opinion. . Because the District Court addressed Con-nelly’s Amended Complaint upon a motion to dismiss, we recount the facts as alleged in that pleading and draw all reasonable infer-enees in favor of Connelly. Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir.2008). . The District Court had jurisdiction over the federal claims under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over the related state law claims under 28 U.S.C. § 1367. We have appellate jurisdiction over the final decision of the District Court pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to grant a motion to dismiss under a plenary standard. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.2009). We are \"required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant.” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d Cir.2014) (quotation marks and citations omitted). However, as more fully described herein, we disregard legal conclusions and recitals of the elements of a cause of action supported by mere conclusory statements. Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010). . Connelly only sought a curative amendment if the District" }, { "docid": "22211471", "title": "", "text": "in favor of LMSD, and an order of October 20, 2011, denying as moot plaintiffs’ motion to preclude expert testimony. No. 2:07-cv-3100, Doc. No. 187. On December 1, 2011, LMSD filed a cross-appeal from the portion of the District Court’s February 15, 2008 Order which denied LMSD’s motion to dismiss plaintiffs’ Title VI claims for failure to exhaust administrative remedies and, as we have indicated, the District Court’s April 5, 2011 denial of its motion to amend its answer to the TAC. J.A. vol. 1, at 43-45; 2:07-cv-3100, Doc. Nos. 123-24. III. STATEMENT OF JURISDICTION The District Court had jurisdiction over the plaintiffs’ federal law claims pursuant to 20 U.S.C. § 1415(i)(3)(A), 28 U.S.C. § 1331, and 28 U.S.C. § 1343(a)(3). In addition, the plaintiffs claimed that the Court had supplemental jurisdiction over their state law claims pursuant to 28 U.S.C. § 1367. We, however, do not determine whether the District Court had jurisdiction over the state law claims because no party contends that the Court erred in not exercising jurisdiction over those claims. We have appellate jurisdiction under 28 U.S.C. § 1291. IV. STANDARD OF REVIEW It is well established that we employ a plenary standard in reviewing orders entered on motions for summary judgment, applying the same standard as the district court. Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.2010) (citing Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009)); Albright v. Virtue, 273 F.3d 564, 570 (3d Cir.2001); see also Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir.2013); Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995) (citing Beazer E., Inc. v. United States Envtl. Protection Agency, Region III, 963 F.2d 603, 606 (3d Cir.1992)). Inasmuch as our review is plenary, “[w]e may affirm the District Court on any grounds supported by the record,” even if the court did not rely on those grounds. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000). In considering an order entered on a motion for summary judgment, “we view the underlying facts and all reasonable inferences therefrom in the light most" }, { "docid": "23526907", "title": "", "text": "amorphous, unspecified requirement. Even the most indulgent reading does not suggest that IFF was legally obligated to compensate its customers. The absence of such an allegation is fatal to IFF’s proposed indemnification claim. Accordingly, we will decline to upset the District Court’s holding that IFF failed to state an implied indemnification claim for third-party damages. IV. CONCLUSION For the foregoing reasons, we will affirm the District Court’s judgment. . After the defendants filed oppositions to IFF’s motion, IFF filed a reply brief stating that it was \"agreeable” to withdrawing its proposed crossclaims for breach of express and implied warranties. (App. 207.) Judge Shipp denied IFF’s motion notwithstanding IFF’s indication of willingness to withdraw its breach of warranty crossclaims. . After this appeal was docketed, the Clerk of this Court advised the parties that this appeal was subject to possible dismissal on the ground that the District Court’s order denying IFF’s request for leave to assert crossclaims was not a final order within the meaning of 28 U.S.C. § 1291. In response, IFF submitted a letter stating that the District Court, following the filing of the notice of appeal, had entered an order stating that its ruling on IFF’s request for leave to file crossclaims \"was a final order for purposes of appeal, and that all remaining claims, counterclaims and cross-claims in this matter are rendered moot[.]” Travelers, Dammann and Nationwide have all submitted separate letters concurring that there are no issues pending before the District Court. Having considered the matter independently, see Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (noting that “courts ... have an independent obligation to determine whether subject-matter jurisdiction exists”), we perceive no impediment to this Court’s exercise of jurisdiction. . IFF asserts in its opening brief that we should exercise plenary review over the District Court's denial of its request, and is not the first litigant to do so in this Court. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 n. 3 (3d Cir.2008) (\"Bjorgung appears to argue, incorrectly, that [the decision refusing" }, { "docid": "22629068", "title": "", "text": "appeal, Great Western challenges the District Court’s refusal to consider Proposed Amended Complaint 3 and argues that the motion for reconsideration was erroneously denied. II. Defendants contest our jurisdiction and that of the District Court, contending that this action is barred by the Rooker-Feldman doctrine. Although Defendants raised this argument in their motion to dismiss, the District Court declined to address it and, exercising jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, dismissed Great Western’s Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). We exercise de novo review over questions of subject matter jurisdiction. PennMont Secs. v. Frucher, 586 F.3d 242, 245 (3d Cir.2009). Moreover, all courts “have an independent obligation to determine whether subject-matter jurisdiction exists.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Our standard of review of a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary. PennMont Secs., 586 F.3d at 245. We review a district court decision refusing leave to amend under Federal Rule of Civil Procedure 15(a) for abuse of discretion. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). Likewise, the denial of a motion for reconsideration is reviewed for abuse of discretion. McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238 (3d Cir.2005). III. A. Rooker-Feldman Doctrine In certain circumstances, where a federal suit follows a state suit, the Rook- er-Feldman doctrine prohibits the district court from exercising jurisdiction. The doctrine takes its name from the only two cases in which the Supreme Court has applied it to defeat federal subject-matter jurisdiction: Rooker v. Fidelity Trust Co., 268 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In a recent decision, the Supreme Court held that the Rooker-Feldman doctrine “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced" }, { "docid": "23015075", "title": "", "text": "claim that a defendant submitted for payment and that appellants’ kickback allegations did not state a claim for relief under the FCA. III. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction over appellants’ FCA claims under 31 U.S.C. § 3732(a) and 28 U.S.C. § 1331 and supplemental jurisdiction over appellants’ state law claims under 28 U.S.C. § 1367. We have jurisdiction to review the District Court’s final order under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order granting appellees’ motion to dismiss for failure to state a claim. See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir.2011). As we have indicated, we accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to appellants, and determine whether, under any reasonable reading of the amended complaint, appellants may be entitled to relief. Id. In this determination “[t]he issue is not whether [appellants] will ultimately prevail but whether [they are] entitled to offer evidence to support the claims.” See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000) (citations and internal quotation marks omitted). We review the District Court’s decisions to dismiss the complaint with prejudice and deny appellants’ request for leave to amend their complaint for an abuse of discretion. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir.2002); Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000). IV. DISCUSSION A. The Record on Appeal Before we discuss the merits of appellants’ claims we address a dispute between the parties concerning whether we should consider certain exhibits that appellants have included in the appendix. Though ordinarily the parties on an appeal do not have a dispute over what documents should be in the record, in this case we address this question because appellants have included two documents in the joint appendix, without our leave, that neither party filed in the District Court and that the Court therefore did not consider, i.e., the February 13, 2008 testimony of Kerry Weems, Acting Administrator for CMS, before the Senate" }, { "docid": "23015074", "title": "", "text": "rejected appellants’ FCA claims that they based on violations of the AKS, finding that appellants failed to allege that United Health certified compliance with the AKS and also failed to allege that the Government predicated its funding decisions on such a certification. Finally, the Court declined to exercise supplemental jurisdiction over appellants’ state law claims and denied appellants’ request for leave to amend the complaint. Appellants filed a timely notice of appeal from the District Court’s May 13, 2010 order, challenging the Court’s decision granting appellees’ motion to dismiss and arguing that, in any event, when the Court determined that it would dismiss the complaint it should have done so without prejudice and/or allowed appellants to amend their complaint. The Government, though declining to intervene in the District Court and expressing no opinion on the merits of appellants’ claims, has filed an amicus curiae brief urging us to reverse the District Court’s order to the extent that the Court concluded that an FCA claim cannot survive if the plaintiff does not identify a specific false claim that a defendant submitted for payment and that appellants’ kickback allegations did not state a claim for relief under the FCA. III. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction over appellants’ FCA claims under 31 U.S.C. § 3732(a) and 28 U.S.C. § 1331 and supplemental jurisdiction over appellants’ state law claims under 28 U.S.C. § 1367. We have jurisdiction to review the District Court’s final order under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order granting appellees’ motion to dismiss for failure to state a claim. See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir.2011). As we have indicated, we accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to appellants, and determine whether, under any reasonable reading of the amended complaint, appellants may be entitled to relief. Id. In this determination “[t]he issue is not whether [appellants] will ultimately prevail but whether [they are] entitled to offer evidence to support the" }, { "docid": "23320832", "title": "", "text": "15 is inconsistent with 28 U.S.C. § 2255 and with the rules governing § 2255 and is, therefore, inapplicable to § 2255 petitions. We also appointed counsel (“CJA Counsel”) to represent petitioner, and they have ably done so both in their briefs and at oral argument. Simultaneously with the filing of their opening brief, CJA counsel moved to expand the scope of the certificate of appealability to include consideration of the factual sufficiency of Thomas’s petition. This Court granted the request, including in the certification: (1) whether the original § 2255 petition included sufficient facts to avoid summary dismissal; and (2) whether, in light of the strict one-year time limit imposed by the AEDPA, district courts confronted with § 2255 petitions which the courts deem to include too few facts should allow additional filings only for the purpose of clarifying and recording factual detail. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2255 and 1331. We have jurisdiction under 28 U.S.C. § 1291. Typically, we would review a District Court’s order denying a motion to amend for abuse of discretion. See United States v. Duffus, 174 F.3d 333, 336 (3d Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 163, 145 L.Ed.2d 138 (1999). Here, however, the District Court did not exercise its discretion in denying the amendment but, rather, apparently believed that it did not have the authority to apply Rule 15 to a § 2255 petition. The question of whether Rule 15 applies to § 2255 petitions implicates the interpretation and application of legal precepts; therefore, our standard of review is plenary. See Cooney v. Fulcomer, 886 F.2d 41, 43 (3d Cir.1989). We also exercise plenary review over the legal conclusions which prompted the District Court to summarily dismiss Thomas’s petition. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000). A. The Federal Rules of Civil Procedure apply to habeas corpus proceedings “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed.R.Civ.P. 81(a)(2). In addition," }, { "docid": "572201", "title": "", "text": "injunction pending appeal. Eaton filed a timely notice of appeal and Plaintiffs filed a timely cross-appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1337. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over an order denying a motion for judgment as a matter of law. LePage’s Inc. v. 3M, 324 F.3d 141, 145 (3d Cir.2003) (en banc). A motion for judgment as a matter of law should be granted “only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Id. at 145-46 (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993)). We review questions of law underlying a jury verdict under a plenary standard of review. Id. at 146 (citing Bloom v. Consol. Rail Corp., 41 F.3d 911, 913 (3d Cir.1994)). Underlying legal questions aside, “[a] jury verdict will not be overturned unless the record is critically deficient of that quantum of evidence from which a jury could have rationally reached its verdict.” Swineford v. Snyder Cnty., 15 F.3d 1258, 1265 (3d Cir.1994). We review a district court’s decision to exclude expert testimony for abuse of discretion. Montgomery Cnty. v. Microvote Corp., 320 F.3d 440, 445 (3d Cir.2003). To the extent the district court’s decision involved an interpretation of the Federal Rules of Evidence, our review is plenary. Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir.2000). We also review a district court’s decisions regarding discovery and case management for abuse of discretion. United States v. Schiff, 602 F.3d 152, 176 (3d Cir.2010); In re Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir.1982). We review legal conclusions regarding standing de novo, and the underlying factual determinations for clear error. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 253 (3d Cir.2005). III. DISCUSSION A. Effect of the Price-Cost Test The most significant issue in this case is" }, { "docid": "2243129", "title": "", "text": "of their own due process right to “raise, nurture, discipline and educate their children” based on a school district’s punishment of their child for speech the child uttered in the family home. After discovery, both sides moved for summary judgment, and the court thereafter entered summary judgment in favor of Justin and against the School District only on the First Amendment claim. The court concluded that a jury trial was necessary to determine compensatory damages and attorneys’ fees. See id. at 507. Thereafter, the district court denied the District’s motion for entry of judgment pursuant to Fed.R.Civ.P. 54(b) or, in the alternative, for the issuance of a certificate of appealability pursuant to 28 U.S.C. § 1292(b). The parties subsequently filed a joint motion in which they stipulated to damages and requested entry of final judgment while preserving all appellate issues pertaining to liability. The district court then entered a consent judgment, and the School District appealed the district court’s grant of summary judgment in favor of Justin on his First Amendment claim. III. SUMMARY JUDGMENT “Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir.2008) (citation and internal quotation marks omitted). In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the non-moving party. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir.2000). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “As our review of a grant of summary judgment is plenary, we operate under the same legal standards as the District Court.” Bjorgung, 550 F.3d at 268. IV. DISCUSSION 1. The First Amendment’s Application in Public Schools." }, { "docid": "2353140", "title": "", "text": "*32 (quoting Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.1997)). PG filed a timely appeal from the District Court’s aforementioned rulings. Given that Election Day was fast approaching, we granted the parties’ motion to expedite the proceedings. On November 1, 2012, we entered an order affirming the District Court’s rulings. This opinion sets forth the bases of the Order. II. Standard of Review We exercise plenary review over the District Court’s grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010). “[I]n deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the [Appellant], and all inferences must be drawn in [its favor].” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009) (citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). We review the District Court’s ruling regarding the Consent Order for an abuse of discretion, see NutraSweet Co. v. Vit-Mar Enters., 176 F.3d 151, 153 (3d Cir.1999), and look to see whether the decision was “arbitrary, fanciful or clearly unreasonable.” Democratic Nat’l Comm., v. Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir.2012) (quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir.2007)); see also Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993) (“An abuse of discretion arises when the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” (internal quotation marks omitted)). III. The Right of Access Appellant argues that it has a constitutionally protected right of access to gather news at the polling place and that any restriction on this right must be reviewed under strict scrutiny. While PG never explicitly claims that" }, { "docid": "23526908", "title": "", "text": "stating that the District Court, following the filing of the notice of appeal, had entered an order stating that its ruling on IFF’s request for leave to file crossclaims \"was a final order for purposes of appeal, and that all remaining claims, counterclaims and cross-claims in this matter are rendered moot[.]” Travelers, Dammann and Nationwide have all submitted separate letters concurring that there are no issues pending before the District Court. Having considered the matter independently, see Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (noting that “courts ... have an independent obligation to determine whether subject-matter jurisdiction exists”), we perceive no impediment to this Court’s exercise of jurisdiction. . IFF asserts in its opening brief that we should exercise plenary review over the District Court's denial of its request, and is not the first litigant to do so in this Court. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 n. 3 (3d Cir.2008) (\"Bjorgung appears to argue, incorrectly, that [the decision refusing leave to amend] is subject to de novo review.” (first emphasis supplied)). The cases IFF cites do not stand for that proposition. We have unwaveringly applied an abuse-of-discretion standard to the denial of a request for leave to amend a pleading. See, e.g., Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 337 (3d Cir.2009); Kanter v. Barella, 489 F.3d 170, 181-182 (3d Cir.2007). In fact, we have rejected the very proposition that IFF now appears to press: Plaintiffs contend that the applicable standard of review of futility determinations is de novo, relying upon our decision in [In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410 (3d Cir.1997)], as adopting the standard employed by several of our sister courts of appeals, but we do need read Burlington as having done so.... Accordingly, we decline the plaintiffs’ invitation to chart a new course and consider the District Court’s finding of futility for abuse of discretion. In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 281 n. 13 (3d Cir.2004). . The parties agree that New" }, { "docid": "22256660", "title": "", "text": "of limitations. Gar-vin then filed a motion 'for reconsideration and a request that the district court certify the question for an interlocutory appeal under 28 U.S.C. § 1292(b). The district court denied Garvin’s motion and request on January 3, 2003, and on February 24, 2003, granted summary judgment to the City of Philadelphia on the merits with respect to Garvin’s claims against it under section 1983. Garvin timely appealed, challenging only the district court’s denial of her motions to amend her complaint and for reconsideration of that denial. Br. of Appellant at 3. II. JURISDICTION The district court had jurisdiction over Garvin’s claims brought under section 1983 pursuant to 28 U.S.C. §§ 1331 and 1343 and it had jurisdiction over her state law claims under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291 inasmuch as the district court’s order granting summary judgment to the City terminated the proceedings in the district court. Therefore, we may review the denial of Garvin’s motion to amend at this time. III. DISCUSSION A. STANDARD OF REVIEW We review the district court’s decision denying Garvin’s motion to amend her complaint for abuse of discretion. Singletary v. Pennsylvania Dep’t of Corrs., 266 F.3d 186, 193 (3d Cir.2001) (citing Urrutia v. Harrisburg County Police Dep’t, 91 F.3d 451, 457 (3d Cir.1996)). If we were reviewing factual conclusions made by the district court, we would review for clear error. Id. (citing Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir.1977)). Here, however, the factual circumstances we consider are essentially not in dispute so that our review is of the district court’s interpretation of Federal Rule of Civil Procedure 15 and thus is plenary. Id. (citing Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1177 (3d Cir.1994)). B. THE MOTION TO AMEND Claims such as Garvin’s brought under section 1983 are subject to state statutes of limitations governing personal injury actions. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989); Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998)." }, { "docid": "23054836", "title": "", "text": "at *8. This appeal followed. II The District Court had subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.2009). To survive a motion to dismiss, the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. This standard requires the plaintiff to show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Twombly and Iqbal require us to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir.2011)(quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010))(alterations and internal quotation marks omitted). Ill Connelly claims Steel Valley’s salary scale impaired his right to travel interstate in violation of the Privileges and Immunities Clause of Article IV (as incorporated through the Fourteenth Amendment) and the Equal Protection Clause. We review both of Connelly’s claims under the same standard because “the right to interstate travel finds its ‘most forceful expression in the context of equal protection analysis.’ ” Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir.1992)" }, { "docid": "9436300", "title": "", "text": "will affirm the District Court with respect to its dismissal of Counts I and II of the amended complaint, and we will vacate and remand with respect to Counts III and IV. . In the pleadings, the District Court opinion, and the appellate briefs, this university is referred to as “James Mason University.” No such institution exists. The record cites a school in Harrisonburg, Virginia, where James Madison University is located. . In the original complaint, Mt. Tabor averred that it had pre-sold twenty-seven units and Campus View averred that it had pre-sold thirty-six units. . The District Court exercised subject matter jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review of a district court’s dismissal order under Federal Rule of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010) (citation omitted). . We note that the original complaint, filed in state court, was verified as true and correct under penalty of perjury by Russell P. Mills, the manager of West Run. Although the fact that the original complaint was verified does not alter the principle that an amended complaint will supersede the original, see King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (per curiam), that verification places a heavy burden on Plaintiffs to explain why the number of pre-sold units was incorrect. We also note that although complaints filed in federal court are usually not verified by the parties, Rule 11 of the Federal Rules of Civil Procedure requires an attorney to certify that a pleading \"is not being presented for any improper purpose, such as to harass, cause unnecessary delay, dr needlessly increase the cost of litigation” and that \"the factual contentions have evidentiary support.” Fed. R.Civ.P. 11(b)(1), (3)." }, { "docid": "23139108", "title": "", "text": "231 (3d Cir.2008). . The District Court had jurisdiction over the federal claims under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over the related state law claims under 28 U.S.C. § 1367. We have appellate jurisdiction over the final decision of the District Court pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to grant a motion to dismiss under a plenary standard. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.2009). We are \"required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant.” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d Cir.2014) (quotation marks and citations omitted). However, as more fully described herein, we disregard legal conclusions and recitals of the elements of a cause of action supported by mere conclusory statements. Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010). . Connelly only sought a curative amendment if the District Court decided to dismiss the Amended Complaint under Rule 12(b)(6). In that event, she asked for leave to \"bolster the factual allegations related to her retaliation and disparate treatment claims.” (App. 14.) Because we conclude that Connelly’s pleadings were sufficient to survive the motion to dismiss, no curative amendment is necessary. . Although Ashcroft v. Iqbal described the process as a \"two-pronged approach,” 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court noted the elements of the pertinent claim before proceeding with that approach, id. at 675-79, 129 S.Ct. 1937. Thus, we have described the process as a three-step approach. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n. 4 (3d Cir.2011) (citing Santiago, 629 F.3d at 130). . An employee proceeding under the McDonnell Douglas pretext framework bears the initial burden of establishing a prima facie case by showing: (1) that she was a member of a protected class, (2) that she was qualified for the job, and (3) another person, not in the protected class, was treated" }, { "docid": "9436299", "title": "", "text": "707 (2d Cir.1989); Raulie v. United States, 400 F.2d 487, 526 (10th Cir.1968). For example, at the summary judgment stage, a district court may consider a statement or allegation in a superseded complaint as rebuttable evidence when determining whether summary judgment is proper. See 188 LLC, 300 F.3d at 735-36. However, at the motion to dismiss stage, when the district court typically may not look outside the four corners of the amended complaint, the plaintiff cannot be bound by allegations in the superseded complaint. Applying these principles to this appeal, the District Court was required to convert Huntington’s motion to dismiss into a motion for summary judgment before looking beyond the amended complaint to the pre-sale numbers contained in the original complaint. See Kelley, 135 F.3d at 1204. We will vacate and remand so the District Court can give Plaintiffs a chance to provide evidence showing that the pre-sale numbers in the original complaint were incorrect (as they now claim) and that the real numbers meet the contractual requirements. IV For the foregoing reasons, we will affirm the District Court with respect to its dismissal of Counts I and II of the amended complaint, and we will vacate and remand with respect to Counts III and IV. . In the pleadings, the District Court opinion, and the appellate briefs, this university is referred to as “James Mason University.” No such institution exists. The record cites a school in Harrisonburg, Virginia, where James Madison University is located. . In the original complaint, Mt. Tabor averred that it had pre-sold twenty-seven units and Campus View averred that it had pre-sold thirty-six units. . The District Court exercised subject matter jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review of a district court’s dismissal order under Federal Rule of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010) (citation omitted). . We note that the original complaint, filed in state court, was verified as true and correct under penalty of perjury by Russell P. Mills, the manager of" }, { "docid": "18019487", "title": "", "text": "that Rule 59 governs post-judgment requests for leave to amend and Burtch failed to allege any of the requirements of Rule 59(e). Burtch filed a timely appeal. II. JURISDICTION AND STANDARD OF REVIEW We exercise plenary review of the District Court’s grant of a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010) (citation omitted). The District Court’s denial of a motion to amend, pursuant to Federal Rule of Civil Procedure 15(a), is reviewed for abuse of discretion. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). We review the District Court’s denial of a Rule 59(e) motion to amend the complaint for abuse of discretion, In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 280 (3d Cir.2004), but we review the District Court’s underlying legal determinations de novo and factual determinations for clear error, Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir.2010). III. ANALYSIS 1. Motion to Dismiss A complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “[A] plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted) (alteration in Twombly). When reviewing a motion to dismiss, we construe the complaint “in the light most favorable to the plaintiff.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir.2010) (citations and internal quotation marks omitted). The Supreme Court in Twombly set forth the" } ]

[ { "docid": "22065927", "title": "", "text": "the less because his change of domicil was induced by the purpose, whether avowed or not, of invoking, for the protection of his rights, the jurisdiction of a Federal court. As said by Mr. Justice Story, in Briggs v. French, 2 Sumner, 251, 256, “if the new citizenship is really and truly acquired, his right to sue is a legitimate, constitutional and legal consequence, not to be impeached by the motive of his removal.” Manhattan Ins. Co. v: Broughton, 109 U. S. 121, 125; Jones v. League, 18 How. 76, 81:' There must be an actual, not pretended, change of domicil; in other words, the removal must be “ a' real one, animo manendi, and not merely ostensible.” Case v. Clarke, 5 Mason, 70. The intention and the act must concur in' order to effect such a change of domicil' as constitutes a change of citizenship. In Ennis v. Smith, 14 How. 400, 423, it was said that “ a removal which does not contemplate an absence from the former domicil for an indefinite and uncertain time is not a change of it,” and that while it .-was difficult to lay down any rule 'under which every instance of residence could, be brought which may make a domicil of choice, “.there must be, to constitute it, actual residence in the place, with the intention that it is to be a principal and permanent residence.” Upon the ■evidence in this record, we cannot resist the conviction that the plaintiff had no purpose to acquire a domicil or settled home in Tennessee, and that his sole object in. removing to that State was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States. He went to Tennessee without any present intention to remain there permanently or for an indefinite time, but with a present intention to return to Alabama as soon as he could do so without defeating the jurisdiction of the Federal court to determine his new suit. He was, therefore, a mere sojourner in the former State when this suit was brought." } ]

[ { "docid": "1897330", "title": "", "text": "Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994). Since statutes conferring diversity jurisdiction must be strictly construed, where a plaintiffs claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979). A person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedón Martínez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’” Rodríguez-Díaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701; Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 49-50 (1st Cir.1992). It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such a change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir.1984). In other words, a Plaintiff maintains his original domicile until he can prove by clear and convincing evidence that he has changed that domicile. Therefore, in his case, we consider Plaintiff’s domicile to be in Puerto Rico unless he can show by clear and convincing evidence that he has changed his domicile. Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). “The relevant standard is ‘citizenship,’ ie. ‘domicile,’ not mere residence; a party may reside" }, { "docid": "1897329", "title": "", "text": "1996 Ohio state general elections, but did not vote in the 1996 Puerto Rico general elections. Since August 23, 1996, Plaintiff has had a checking account with Star Bank in Ohio, and his statements are sent to Plaintiff’s address in Ohio. Plaintiff has not filed income tax returns in either Ohio or Puerto Rico. Plaintiff maintains a savings bank account with Banco Popular de Puerto Rico in Puerto Rico, and his statements are sent to his parents’ home in Puerto Rico. II. Issue of Domicile Federal courts have limited jurisdiction, and statutes which grant jurisdiction must be strictly construed. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). This case involves no federal question. Thus, jurisdiction depends solely upon the diversity of citizenship of the parties. Section 1332 of United States Code Title 28 provides federal courts with diversity jurisdiction. 28 U.S.C. § 1332 (1994). Diversity jurisdiction requires complete diversity between all the plaintiffs and all the defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994). Since statutes conferring diversity jurisdiction must be strictly construed, where a plaintiffs claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979). A person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedón Martínez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’” Rodríguez-Díaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Once diversity jurisdiction is established, it is not lost" }, { "docid": "23345302", "title": "", "text": "to dismiss. After a non-evidentiary hearing, held on March 28, 1991, the court denied Montle’s motion. The court then granted Bank One’s motion for summary judgment on its claims and Montle’s counterclaims, explaining its ruling in a Memorandum and Order dated May 6, 1991. 764 F.Supp. 687. Montle appeals. We remand for further proceedings on the question of diversity of citizenship between the parties. I. Federal jurisdiction based on diversity of citizenship requires that the matter in controversy be between citizens of different states. 28 U.S.C. § 1332(a)(1). For purposes of diversity, a person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’ ” Rodriguez-Diaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). II. In contesting Bank One’s assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas — the same state of which Bank One was a citizen. Generally, once challenged, “the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” James W. Moore et al., Moore’s Federal Practice ¶ 0.71[5.—1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by “competent proof”); O’Toole v. Arlington Trust Co., 681 F.2d 94," }, { "docid": "217526", "title": "", "text": "he is absent, he has the intention of returning’.” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988) (citing 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3612, at 526 (1984)). The law presumes that once a domicile is acquired, it continues until a new domicile is established. Bank One, Texas, N.A 964 F.2d at 50 (citing Halves v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Thus, a plaintiff who claims to have changed his domicile carries a heavy burden to demonstrate that he has established a new domicile, in order for the previously established domicile to not control. Id.; White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Moreover, once diversity jurisdiction is challenged, a plaintiff asserting it must demonstrate the facts supporting diversity jurisdiction by a preponderance of the evidence. Bank One, Texas, N.A., 964 F.2d at 50; Alicia-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.Puerto Rico 1998) (“It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such change by clear and convincing evidence.”); see also White v. All America Cable and Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). The factors relevant to determining a person’s domicile include 1) the person’s place of voting; 2) the location of the person’s real property; 3) the state issuing the person’s drivers license; 4) the state where the person’s bank accounts are maintained; 5) the state where the person has a club or church membership; and 6) the state where the person is employed. Bank One, Texas, N.A., 964 F.2d at 50. In this case, Plaintiff alleges that she was domiciled in New York on February 9, 2000, the date in which she filed her Complaint. Defendants, who are all domiciliaries of Puerto Rico, challenge this Court’s jurisdiction by asserting that Plaintiffs domicile on the date that the Complaint was filed was Puerto Rico. Plaintiff countered Defendants’ evidence with documents illustrating that she has been receiving medical treatment in New York; her" }, { "docid": "2183579", "title": "", "text": "for lack of subject matter jurisdiction as both Kubin and Miller are citizens of Connecticut. Specifically, defendants contend that Miller’s numerous contacts with Connecticut support the assertion that Connecticut is his domicile, thus destroying diversity jurisdiction. The Court disagrees. For diversity purposes, an individual’s citizenship is defined as his domicile. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Justice Holmes explained that every individual may have only one domicile because the law must assign to each person a “technically pre-eminent headquarters ... in order that certain rights and duties that have been attached to it by the law may be determined.” Hawes, 598 F.2d at 701 (citing Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914)). An individual’s domicile is determined by physical presence in the place combined with intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989) (citing Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817 (1939)). When the plaintiff has shown that the defendant had a former domicile, the burden shifts to the defendant to prove that his domicile has changed. Kaiser v. Loomis, 391 F.2d 1007, 1009-10 (6th Cir.1968) (citing Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). To sustain this burden, the defendant must show that he has acquired a new residence and intends to remain there. Kaiser, 391 F.2d at 1009 (cit ing Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874)). In the present case, the parties do not dispute that Miller was originally domiciled in New York. Defendants contend, however, that Miller’s domicile changed in 1981 when he purchased a home in South Kent, Connecticut. In support of this contention, Miller points to many factors suggesting that Connecticut is his true domicile, including: he renovated the Connecticut home and installed a pool, married in Connecticut in 1983, rented a condominium there during his divorce, uses an office in Connecticut, lists Connecticut as his principal residence on his tax" }, { "docid": "22969422", "title": "", "text": "has been well recognized for many years. Mr. Justice Holmes defined domicile pragmatically: “The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914). “Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil; and second, the intention to remain there.” Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). There must be an intention to remain at the new residence indefinitely; it is not required that the intention be to stay there permanently. A “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915). “To acquire a domicile of choice in a place, a person must intend to make that place his home for the time at least.” Restatement 2d, Conflict of Laws § 18 (1971). There is no minimum period of residency required. A citizen of the United States can instantly transfer his citizenship from one state to another. Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 32 L.Ed. 690 (1889). A person may have only one domicile at a time and, until a new one is acquired, the established one continues, Restatement 2d, Conflict of Laws § 19 (1971), and, once acquired, the presumption is that it continues until changed. Mitchell v. United States, 21 Wall. 350, 88 U.S. 350, 353, 22 L.Ed. 584 (1874). It has long been the rule that motive for the change in residence is irrelevant in determining domicile. Williamson v. Osenton, supra, 232 U.S. at 625, 34 S.Ct. 442, Morris v. Gilmer, supra; Peterson v. All City Insurance Co., 472 F.2d 71, 74 (2d Cir. 1972). There is an overlay of federal jurisdictional requirements that must also" }, { "docid": "15681601", "title": "", "text": "survives dear-error review. See, e.g., Padilla-Mangual v. Pavía Hosp., 516 F.3d 29, 32 (1st Cir.2008) (noting that a district judge’s determination in this area is “a mixed question of law and fact,” which we review under the “clearly erroneous” rubric) (internal quotation marks omitted); Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742 (1st Cir.2000) (similar). Citizenship for diversity purposes is domicile, and domicile is the place where one is present and intends to stay. See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that “[a] person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning”) (quoting Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir.1988) (internal quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004) (similar); see also Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979) (adding that we require “no minimum period of residency”). As the party invoking diversity jurisdiction, Rodriguez had to prove domicile by a preponderance of the evidence, see, e.g., Padilla-Mangual, 516 F.3d at 31; García Pérez, 364 F.3d at 350 — and she did just that, presenting enough evidence to show that she was a domiciliary (and thus a citizen) of California. Rodriguez was the only witness at the hearing on the diversity issue — Señor Frog called no one. Rodriguez testified that she had moved from Puerto Rico to California in September 2005, roughly three months before she filed this suit. She was pregnant, and she and her boyfriend Adrian Peralta wanted to start their lives together in the Golden State. Since they had very little money, the couple lived in a San Francisco Bay area home owned by Peralta’s grandmother. And by the time she sued Señor Frog, she had fully relocated from Puerto Rico to California: she was physically present in California (with her clothes, books, furniture, household items, etc.), had opened up a California bank account (she had no money in any Puerto Rico banks), had gotten a California driver’s license and job, and had hired a" }, { "docid": "217525", "title": "", "text": "she filed her Complaint. Domicile generally requires two elements: 1) presence in the alleged state of domicile, and 2) the intent to remain there. Bank One, Texas, N.A., 964 F.2d at 50; Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 (1984). Long settled case law holds that state citizenship is equivalent to domicile for purposes of determining diversity jurisdiction. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8, 10 (1st Cir.1991). In addressing the issue of domicile, this Circuit has held that “[t]he relevant standard is ‘citizenship,’ i.e. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist, 946 F.2d at 10. The First Circuit has also held that “a person’s domicile ‘is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning’.” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988) (citing 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3612, at 526 (1984)). The law presumes that once a domicile is acquired, it continues until a new domicile is established. Bank One, Texas, N.A 964 F.2d at 50 (citing Halves v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Thus, a plaintiff who claims to have changed his domicile carries a heavy burden to demonstrate that he has established a new domicile, in order for the previously established domicile to not control. Id.; White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Moreover, once diversity jurisdiction is challenged, a plaintiff asserting it must demonstrate the facts supporting diversity jurisdiction by a preponderance of the evidence. Bank One, Texas, N.A., 964 F.2d at 50; Alicia-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.Puerto Rico 1998) (“It is the party seeking to invoke the federal court’s jurisdiction" }, { "docid": "9505686", "title": "", "text": "the newsstands on Aug. 1, 1986. The board fired Buckley on Aug. 8, and Allegheny later declared bankruptcy. Business Week July 3, 1989, cover, p. 68. Plaintiff filed this action on July 20, 1989, alleging that statements in both articles are false and defamatory. I. Subject Matter Jurisdiction Section 1332(a) vests this court with “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interests and costs, and is between ... (1) citizens of different States.” Defendants contend that the complete diversity demanded by this statute does not exist here because plaintiff is a citizen of Pennsylvania and, as admitted in the complaint, four of the defendants—Symonds, Schroeder, Miles, and Weber—are also Pennsylvania citizens. Plaintiff maintains that he is a Florida citizen. For diversity purposes, state citizenship is equated with domicile. Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). A person’s domicile “is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” 13B Wright, Miller & Cooper, Federal Practice and Procedure § 3612, at 526. Domicile generally requires two elements: (1) physical presence in a state and (2) the intent to make that state a home. 1 Moore, Lucas, Fink, Weckstein & Wicker, Moore’s Federal Practice 111.74[3.-1]. “It is the domicile at the time the suit is filed which con-trols_” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). When this court first considered the instant motion, it granted defendants’ request for a hearing on the disputed issue of plaintiff’s citizenship. The magistrate/judge found plaintiff to be a Florida citizen, and defendants object pursuant to 28 U.S.C. § 636(b)(1)(C). For the reasons that follow, the court, after de novo review, 28 U.S.C. § 636(b)(1), accepts the magistrate/judge’s R & R and finds that plaintiff was a Florida citizen at the time this action was filed. The facts relevant to plaintiff’s citizenship are as follows. In 1972, plaintiff be came president of Allegheny International (“AI”) and moved to Sewickley, Pennsylvania. He" }, { "docid": "23345303", "title": "", "text": "1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). II. In contesting Bank One’s assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas — the same state of which Bank One was a citizen. Generally, once challenged, “the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” James W. Moore et al., Moore’s Federal Practice ¶ 0.71[5.—1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by “competent proof”); O’Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982); Hawes, 598 F.2d at 702; Lugo-Vina v. Pueblo International, Inc., 574 F.2d 41, 44 (1st Cir.1978). There is, however, a presumption in favor of continuing domicile, Hawes, 598 F.2d at 701; see also Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1875) (“domicile once acquired is presumed to continue until it is shown to have been changed”). As Montle had unquestionably been a Massachusetts domiciliary, he bore an initial burden of producing sufficient evidence to support his assertion that he had changed his domicile from Massachusetts to Texas before suit was filed. See Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 955 (5th Cir.1966); Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980). Montle needed to do two things to effect a change in his domicile: he had (1) to be present in the new domicile, and (2) to intend to remain there. Valedon, 806 F.2d at 1132; Hawes, 598 F.2d at 701; see also 1 Moore’s Federal" }, { "docid": "4004765", "title": "", "text": "See Notice of Removal ¶2. Federal courts have interpreted this removal statute narrowly and have placed the burden upon the removing party to demonstrate the existence of federal subject matter jurisdiction. See, e.g., Kingsley v. Lania, 221 F.Supp.2d 93, 95 (D.Mass.2002) (Dein, M.J.); Therrien v. Hamilton, 881 F.Supp. 76, 78 (D.Mass.1995) (Ponsor, J.). A. Diversity Jurisdiction The notice of removal filed in the instant case alleged that this Court has diversity jurisdiction over this dispute. Notice of Removal ¶ 3. The notice states that Alshra-fi is a Massachusetts resident and that American Airlines, Inc. is incorporated in Texas. Id. At the time of removal, the identity of Blackstone, a California resident, was unknown. Although the notice of removal identifies Alshrafi as a Massachusetts resident, the complaint clearly states: “At the time of the incident ..., Mr. Alshrafi resided in Cambridge, Massachusetts. Mr. Alshrafi currently lives in California.” Compl. at 2. This inconsistency between the notice of removal and the complaint caused the Court to raise the question whether Alshrafi and Blackstone are in fact citizens of different states for purposes of diversity jurisdiction. In determining whether diversity jurisdiction extends to a suit, “residency and citizenship are not interchangeable.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 361 n. 1 (1st Cir.2001). Instead, “citizenship usually is equated with domicile.” Id. at 366. “A person’s domicile is the ‘place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.’ Domicile requires both physical presence in a place and the intent to make that place one’s home.” Id. (quoting Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988)) (citation and internal quotation marks omitted). It is the burden of the party invoking diversity jurisdiction, here American Airlines, to demonstrate complete diversity. See id.; Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995). If both Alshrafi and Blackstone were domiciled in California at the time the complaint was filed, then diversity jurisdiction is plainly lacking here. Alshrafi contends that he had become a citizen of California by the" }, { "docid": "3358589", "title": "", "text": "district court refused to grant the requested relief. Cf. Inter-Gen, 344 F.3d at 144 (determining that case was “poor candidate for judicial estoppel” because it did not present “a situation in which a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage”). If I were to grant the requested estoppel, it would effectively bind Fresenius USA — and the courts — to a mistaken, counter-factual and disavowed statement from which Fresenius has derived no benefit and which in turn inflicts no unfair disadvantage on any plaintiff. Accordingly, I decline to exercise my discretion to estop the removal action of Fre-senius USA. D. Conclusion As a factual matter, I find Fresenius USA’s principal place of business, as well as the state of its incorporation, is located in Massachusetts. The corporation is diverse from the California Plaintiffs, and it is not an in-state defendant for the purposes of the forum defendant rule. The citizenship of Fresenius USA, therefore, does not warrant remand of these cases to California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (internal quotation marks and citation omitted). In other words, it is “the place where one is present and intends to stay.” Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 32 (1st Cir.2011). A person can have only one domicile at a time, and until a new domicile is affirmatively established elsewhere, domicile is presumed to continue. See Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31-32 (1st Cir.2008) (citing Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). A change in domicile requires (1) presence in the new domicile and (2) an intent to remain there. Bank One, Texas, N.A. v." }, { "docid": "1415111", "title": "", "text": "diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. To effect a change in domicile, two things are indispensable: First, residence in a new domicile, and second, the intention to remain there indefinitely. A “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. Statutes conferring diversity jurisdiction are to be strictly construed. Where a plaintiff’s claim of diversity is challenged, plaintiff has the burden of proof. Although a trial court’s determination of domicile may be a mixed question of fact and law, such determination on appeal should not be set aside unless clearly erroneous. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698 (1st Cir.1979) for a discussion of these general principles, and the citations in support thereof. In the instant case, it is undisputed that Crowley was residing in Minnesota for one year before he filed the present suit. What is disputed is whether when he brought suit he intended to remain in Minnesota indefinitely. During the intervening year, Crowley made two short visits to Colorado, and, significantly, had in each instance returned to Minnesota. Crowley had indeed expressed a desire, or possibly only a hope, to return to Colorado if, as and when his condition permitted. However, as indicated, a “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. In their respective depositions, both Crowley and his mother indicated that when Crowley filed suit he intended to remain in Minnesota indefinitely. Such statements are of course self-serving, but such does not mean that they must be discarded by the trier of the facts, who, on the contrary, may choose to give credence to them. Further, the facts and circumstances of the instant case are such as to permit the inference that Crowley did have the intent to remain indefinitely in Minnesota. Based then on permissible inferences, coupled with the direct testimony of Crowley and his mother, there is ample support in the record for the district court’s determination that Crowley was a citizen of Minnesota when" }, { "docid": "22192610", "title": "", "text": "and make credibility judgments. Accordingly, we must accept the court’s findings and the conclusions drawn therefrom unless the whole of the record leaves us with “a strong, unyielding belief that a mistake has been made.” Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st Cir.1990) (explicating nature of “clearly erroneous” standard). We then must determine whether the facts, as support-ably found, justify the court’s ultimate le gal conclusion. As we explain below, the district court’s decision easily survives scrutiny under these criteria. In order to sustain diversity jurisdiction in the circumstances of this case, the plaintiff had to demonstrate, inter alia, that she was a citizen of Florida. See 28 U.S.C. § 1332(a)(1); see also Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 642 (1st Cir.1995) (explaining that the party invoking diversity jurisdiction bears the burden of demonstrating complete diversity). For purposes of diversity jurisdiction, citizenship usually is equated with domicile. Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). A person’s domicile is the “place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (citation and internal quotation marks omitted). Domicile requires both physical presence in a place and the intent to make that place one’s home. Id. It follows logically that in order to change domiciles, a person must move to a new state in which she intends to remain indefinitely. Hawes, 598 F.2d at 701. In this instance, the court below relied chiefly on the facts catalogued in the plaintiffs deposition to find that she had not become a Florida domiciliary on or before December 10, 1998. Since a party’s former domicile persists until a new one is acquired, id., the district court reasoned that the plaintiff was a citizen of Puerto Rico on the critical date (and that, therefore, complete diversity was absent). Valentin, slip op. at 10-11. In reaching this conclusion, the court weighted heavily the undisputed fact that the plaintiff did not quit her job at MMC until some time in 1999. Id. at 8. The court also" }, { "docid": "3358590", "title": "", "text": "California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (internal quotation marks and citation omitted). In other words, it is “the place where one is present and intends to stay.” Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 32 (1st Cir.2011). A person can have only one domicile at a time, and until a new domicile is affirmatively established elsewhere, domicile is presumed to continue. See Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31-32 (1st Cir.2008) (citing Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). A change in domicile requires (1) presence in the new domicile and (2) an intent to remain there. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Among the factors relevant to determining this intent include: ‘(the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment.” Id. (citations omitted). Defendants, as the party invoking diversity jurisdiction, have the burden of proving by a preponderance of the evidence the domicile of Mr. Lipps as of the time the underlying actions were filed. See Señor Frog, 642 F.3d at 32; Padillar-Mangual, 516 F.3d at 31. B. Analysis The objective facts, as well as Mr. Lipps’ declarations of intent, tell the following story. Prior to 1996, Mr. Lipps was a citizen of California, where Freseni-us USA, of which he was the CEO, was headquartered. In 1996, when Fresenius USA merged with National Medical Care, Mr. Lipps purchased an apartment in Massachusetts and moved there with his wife. In 2003, Mr. Lipps’ wife returned to California to reside" }, { "docid": "11507549", "title": "", "text": "Goos, 302 F.2d 421, 424 (8th Cir.1962); Lefkowitz v. Lider, 443 F.Supp. 352, 355 (D.Mass.1978). A party’s citizenship for diversity purposes is the place of domicile. Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 702 (1st Cir.1979). Two elements are necessary to establish domicile: 1) physical presence in the claimed domicile, and 2) an intent to remain there indefinitely. Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Miller Press Factory, Inc. v. Douglas, 385 F.Supp. 874 (D.P.R. 1974). Though no minimum period of physical presence is required, Hawes, supra at 701, both elements must exist simultaneously to establish domicile; one element alone is insufficient. Sun Printing, supra; see also, Honneus v. Donovan, 93 F.R.D. 433, 434, fn. 1 (D.Mass.1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2nd., sect. 3613. Once the elements are met a new domicile is established instantaneously. A plaintiff who claims to have changed his domicile in favor of a new one has a particularly heavy burden of establishing citizenship, since the law presumes that a domicile once established continues unless and until a new domicile is acquired. Anderson v. Watt, 138 U.S. 694, 11 S.Ct. 449, 34 L.Ed. 1078 (1891); Holmes v. Sopuch, 639 F.2d 431 (8th Cir.1981); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954 (5th Cir.1966); Wright, Miller & Cooper, supra, sect. 3612. The reason for this presumption is to solve the problem of locating an individual who has clearly abandoned his present domicile but either has not arrived at a new one or has arrived without formulating the intent to stay. Wright, Miller & Cooper, supra, sect. 3612. This presumption may also apply in the case of an American citizen living abroad temporarily. In our Opinion and Order of October 1, 1985, we relied on plaintiff’s statements in his affidavit of his desire to move to California and his intent to remain there indefinitely. In the affidavit plaintiff testifies that he and his wife had decided to settle in California because they liked the area, his wife" }, { "docid": "15681600", "title": "", "text": "we turn to the legal issues on appeal, noting further facts as needed. The Diverse-Citizenship Issue The diversity-jurisdiction statute empowers federal courts to hear and decide suits between citizens of different states, provided the amount in controversy is more than $75,000. See 28 U.S.C. § 1332(a). Puerto Rico is a state for diversity-jurisdiction purposes. See id. § 1332(e). And Señor Frog is a citizen of Puerto Rico, see id. § 1332(c)(1), so Rodriguez’s suit is untenable if she was a Puerto Rico citizen when she filed her December 1, 2005 complaint, see, e.g., Hall v. Curran, 599 F.3d 70, 72 (1st Cir.2010) (per curiam). Señor Frog argues that she was, though it did not press this argument until after Rodriguez had rested her case. Cf. generally Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 (1st Cir.2001) (calling a preanswer motion to dismiss under Fed. R.Civ.P. 12(b)(1) the “proper vehicle for challenging a court’s subject-matter jurisdiction”). But after an evidentiary hearing, the judge deemed Rodríguez a citizen of California when she sued, and this conclusion survives dear-error review. See, e.g., Padilla-Mangual v. Pavía Hosp., 516 F.3d 29, 32 (1st Cir.2008) (noting that a district judge’s determination in this area is “a mixed question of law and fact,” which we review under the “clearly erroneous” rubric) (internal quotation marks omitted); Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742 (1st Cir.2000) (similar). Citizenship for diversity purposes is domicile, and domicile is the place where one is present and intends to stay. See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that “[a] person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning”) (quoting Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir.1988) (internal quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004) (similar); see also Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979) (adding that we require “no minimum period of residency”). As the party invoking diversity jurisdiction, Rodriguez had to prove domicile by a preponderance of the" }, { "docid": "4504191", "title": "", "text": "house of residence, and place of business.’ ” McCann, 458 F.3d at 286 (quoting Krasnov, 465 F.2d at 1301 (internal quotation omitted)). Other factors to be weighed may include “location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, and driver’s license and vehicle registration.” Id. (citing 13B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 3612 (3d ed.2005)). More generally, the court must locate “the center of one’s business, domestic, social and civic life.” Frett-Smith, 511 F.3d at 401. IV. We begin our review of the District Court’s domicile determination by noting a legal precept that may not have been stressed before the District Court but that we nonetheless consider important. As we have explained, an individual’s domicile changes instantly if he “takes up residence at the new domicile” and “intend[s] to remain there.” Krasnov, 465 F.2d at 1300. But “ ‘[a] domicile once acquired is presumed to continue until it is shown to have been changed.’ ” Korn, 398 F.2d at 691 n. 4 (quoting Mitchell v. United States, 88 U.S. 350, 353, 21 Wall. 350, 22 L.Ed. 584 (1874)). “This principle,” we said in McCann, “gives rise to a presumption favoring an established domicile over a new one.” McCann, 458 F.3d at 286-87 (citing Acridge v. Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir.2003)); see also Gutierrez v. Fox, 141 F.3d 425, 427 (2d Cir.1998); State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 519 (10th Cir.1994); Holmes v. Sopuch, 639 F.2d 431, 434 (8th Cir.1981); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979); Stine v. Moore, 213 F.2d 446, 447 (5th Cir.1954); 13B Wright et al., supra, § 3612. This presumption does not shift the burden of proof to establish diversity of citizenship away from the proponent of federal jurisdiction; the party asserting diversity jurisdiction — here, Washington— retains the burden of proving that diversity of citizenship exists by a preponderance of the evidence. See Krasnov, 465 F.2d at 1301. Nevertheless, the presumption" }, { "docid": "15793118", "title": "", "text": "enrolled in college. In December 1983, appellee returned to Florida and unsuccessfully applied for admission to several universities in Miami. After commencing the instant action on March 21, 1984, appellee worked in Miami until July 1984, when she returned to Puer-to Rico to finish school. She planned to return to Miami on completion of her schooling in the summer of 1985. Throughout this period, appellee kept her personal belongings in Miami, maintained a bank account there and not in Puerto Rico, worked only in Miami, and intended to make Florida her home. As stated above, the district court entered an order on August 20, 1985 denying appellant’s motion to dismiss for lack of subject matter jurisdiction. The court held that appellee was a citizen of Florida at the time she commenced the action and, appellant being a citizen of Puerto Rico, the court had jurisdiction based on diversity of citizenship. On September 6, 1985, appellant filed various post-trial motions, including one to dismiss for lack of jurisdiction. The court denied this motion by an order entered March 27, 1986. There is diversity of citizenship if the plaintiff and the defendant are “citizens” of different states. 28 U.S.C. § 1332(a)(1). For the purposes of § 1332(a)(1), state citizenship is the equivalent of “domicile.” Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 701 (1st Cir.1979). “Domicile” is “the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.). To effect a change in domicile, two things are required: “ ‘First, residence in a new domicil; and second, the intention to remain there.’ ” Hawes, supra, 598 F.2d at 701 (quoting Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383 (1904)). It is well settled that “[d]omicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship.” Hawes, supra, 598 F.2d at 701. Accord, Smith v. Sperling, 354 U.S." }, { "docid": "1415110", "title": "", "text": "As we understand it, he was in a coma throughout his four-months stay in a Grand Junction hospital, where he was taken immediately after the accident. However, Crowley does recall his flight from Grand Junction to Minneapolis, and his mental faculties continued to improve thereafter. The present action was not commenced until one year after Crowley’s return to Minnesota. In our view, the district court’s finding that Crowley had the mental ability to form an intent is not clearly erroneous, and is supported by the record. We regard the question of Crowley’s mental faculties as of the date he filed the complaint to be a pure question of fact, and, on appeal, we are not inclined to dis turb the district court’s resolution of the matter. Glaze urges as a second ground for reversal the district court’s further finding that when Crowley filed the present action he had an intent to stay in Minnesota indefinitely. This finding also is supported by the record, and in such circumstance we should not disturb it. For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. To effect a change in domicile, two things are indispensable: First, residence in a new domicile, and second, the intention to remain there indefinitely. A “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. Statutes conferring diversity jurisdiction are to be strictly construed. Where a plaintiff’s claim of diversity is challenged, plaintiff has the burden of proof. Although a trial court’s determination of domicile may be a mixed question of fact and law, such determination on appeal should not be set aside unless clearly erroneous. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698 (1st Cir.1979) for a discussion of these general principles, and the citations in support thereof. In the instant case, it is undisputed that Crowley was residing in Minnesota for one year before he filed the present suit. What is disputed is whether when he brought suit he intended to remain in Minnesota indefinitely. During the intervening year, Crowley" } ]

[ { "docid": "2812880", "title": "", "text": "reasonable doubt is a doubt based upon reason and common sense” and “a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.” The third paragraph of the district court’s instruction is also almost identical to Eighth Circuit Model Jury Instruction 3.11, which states, in part, that “[a] reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence.” Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Jury Instruction 3.11 (1992). This Court has “repeatedly approved” Model Jury Instruction 3.11. United States v. Mabry, 3 F.3d 244, 249 (8th Cir.1993), cert. denied — U.S. -, 114 S.Ct. 1403, 128 L.Ed.2d 75 (1994); see also, United States v. Harris, 974 F.2d 84, 85 (8th Cir.1992) (specifically rejecting a challenge to that portion of the instruction regarding “the mere possibility of innocence”). Therefore, we find that the instruction was proper. 3. Simms also argues that he was denied effective assistance of counsel when his trial counsel failed to object to Detective Lachen-icht’s testimony about a statement made by Ricketts. Detective Lachenicht testified that after Ricketts accepted the package, he told Calhoun to “Go get Roosevelt. Tell him his package is here.” Simms argues that this statement was inadmissible under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and that he was prejudiced by his attorney’s failure to object because this statement was the only evidence suggesting that Ricketts was aware of the package’s contents. Normally, claims of ineffective assistance of counsel are not properly raised on direct appeal. Instead, they are raised in post-conviction collateral proceedings where a proper record can be developed through evidentiary hearings. United States v. Echols, 2 F.3d 849, 850 (8th Cir.1993) (per curiam); United States v. Petty, 1 F.3d 695, 695-96 (8th Cir.1993); United States v. Thomas, 992 F.2d 201, 204-05 (8th Cir.1993). An exception to this general rule exists where the record is adequately developed by the trial court in post-trial proceedings. See Thomas, 992 F.2d at 204; United States v. Williams," } ]

[ { "docid": "2999707", "title": "", "text": "Key, 717 F.2d 1206, 1209 (8th Cir.1983) (per curiam). While “a reasonable delay in the interest of the ultimate goal of justice is often the most prudent choice,” Rush v. Smith, 56 F.3d 918, 921 n. 1 (8th Cir.1995) (en banc), cert. denied, — U.S. -, 116 S.Ct. 409, 133 L.Ed.2d 328 (1995), the district court is in the best position to determine whether a delay will, under the specific circumstances of a given ease, be reasonable. We believe that the district court stated a legitimate basis for its decision to dismiss Lewis from the jury panel, and therefore did not abuse its discretion. An extended discussion of the defendants’ remaining points is unnecessary. See 8th Cir.R. 47(b). The district court did not abuse its discretion in denying a continuance to McMasters, who had retained new counsel immediately prior to the scheduled trial date. Similarly, the district court did not abuse its discretion in issuing an instruction on accomplice testimony patterned after Eighth Circuit Model Jury Instruction 4.05, rather than an instruction which advised the jury to exercise greater caution in considering accomplice testimony; we have specifically held “that no absolute and mandatory duty is imposed upon the trial court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution.” United States v. Schoenfeld, 867 F.2d 1059, 1062 (8th Cir.1989) (per curiam). Finally, the district court did not abuse its discretion when it issued a jury instruction on the conspiracy to commit arson charge. Cf. United States v. Martin, 63 F.3d 1422, 1428 n. 2 (7th Cir.1995) (noting that jury instruction, which stated that an “activity affecting interstate commerce” included “rental of an apartment building,” correctly stated the law). Accordingly, we affirm the judgment of the district court. . The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa. . Although the defendants had been indicted on separate counts of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 (Count 1) and conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (Count" }, { "docid": "1153839", "title": "", "text": "communications. Thus, we find no reasonable possibility of prejudice. C. The Dictionary We now consider whether it constituted reversible error for the district judge, in response to a jury request, to give to the jury a dictionary without consulting counsel. The judge gave the jury the dictionary with the cautionary instruction that “where the court has provided you with definitions and explanations of terms in its instructions to you, those definitions and explanations must control. You must not resort to the dictionary definition for guidance in interpreting the terms defined for and explained to you in the court’s instructions.” Shortly thereafter the district judge reconsidered and removed the dictionary with the following direction: “You are instructed that you must disregard completely any and all definitions obtained from its use. You are to base your decision solely upon the evidence admitted during trial and the instructions given to you at the end of the testimonial portion of the trial.” In United States v. Birges, the defendant also challenged the trial court’s accession to a request for a dictionary, complaining that a “dictionary is a supplemental instruction, requiring counsel to be informed and defendant to be present, pursuant to Fed.R.Crim.P. 43.” 723 F.2d at 670. We agreed that giving the dictionary to the jury was error and noted that “[qjuestions or disputes as to the meaning of terms which arise during jury deliberations should be settled by the court after consultation with counsel, in supplemental instructions.” Id. at 670-71. We did not reverse, however, since the record did “not demonstrate that any prejudice occurred as a result” of the introduction of a dictionary into the jury’s deliberation. Id. at 671. The district judge, in this case, erred in giving the dictionary to the jury. The Government had an obligation to prove that the presence of the dictionary was harmless beyond a reasonable doubt. United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir.1985); Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). In addition to the cautionary and curative instructions," }, { "docid": "2026295", "title": "", "text": "made here. We find no abuse of discretion in denying a severance. Wofford argues that a separate trial would have permitted him to call Gibson as a witness, but he did not show that Gibson was likely to testify or that Gibson’s testimony would exculpate him. An assertion of prejudice absent such a showing does not require severance. See Tillman v. United States, supra; Smith v. United States, 385 F.2d 34 (5th Cir. 1967). During the trial, Adams alluded to a statement by Gibson that Wofford furnished the heroin in the first sale. The trial court, sua sponte, instructed the jury that statements by a defendant could not establish the guilt of a codefendant unless the jury was convinced beyond a reasonable doubt that the statement was made in furtherance of a plan in which all the defendants were involved. Instead, he argues that the trial court should have instructed the jury to disregard all statements of Gibson about the first sale in establishing Wofford’s guilt as no evidence of a common plan existed. As we have previously found sufficient independent evidence to link the three sales into a common series of events, we feel the trial court did not abuse its discretion in giving this particular cautionary instruction. The trial court made clear that only under certain circumstances could certain evidence be used against Wofford. Rule 8(b) assumes that evidence admissible against one defendant may not apply to another defendant. The appropriate safeguard against prejudice to the other defendant is a cautionary instruction. Haggard v. United States, supra. Through inadvertence, the government failed to offer into evidence the heroin, Government’s Exhibits 1, 2 and 3. These were properly marked and authenticated. See Fed.R.Evid. 901. The trial court reminded the prosecution of this failure and Wofford contends the trial court improperly interjected itself in the government’s behalf in doing so. Although the trial court must remain unbiased, it has a responsibility to see that justice is done. The trial court did not assume the role of advocate by merely reminding the prosecution that evidence, thoroughly discussed at trial, had not" }, { "docid": "23098654", "title": "", "text": "But the use of sampling in the quantity calculation has been upheld as a sufficient means of proving the elements of the offense under the circumstances of one case. See. Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.1996). . The fact the drug quantity determination subjected the defendants to a mandatory minimum of ten years of imprisonment, see 21 U.S.C. § 841(b)(1)(A), does not make Apprendi applicable. Aguayo-Delgado, 220 F.3d at 933-34. RILEY, Circuit Judge, concurring in part and dissenting in part. I concur with the majority in affirming the convictions of Elvia Rios (Rios) and Eleodoro Lopez-Uria (Lopez-Uria). I write separately, because I conclude Isidro Serrano-Lopez (Serrano-Lopez) was entitled to have a “mere presence” instruction submitted to the jury. A. Mere Presence Theory of Defense The majority opinion believes the theory of defense for all defendants was focused on the two elements of constructive possession-knowledge and control. Stvpra at 12. Serrano-Lopez focused his defense theory solely on his alleged mere presence. Consistently throughout trial, Serrano-Lopez specifically argued he was arrested and charged based on his mere presence in the vehicle, his mere proximity to concealed drugs discovered in the vehicle, and his mere association with the vehicle’s occupants and owner. During closing argument, Serrano-Lopez’s counsel argued to the jury that “[mjere presence is not evidence of possession.” Serrano-Lopez’s counsel also tendered to the court a proposed jury instruction, which correctly stated the law: “Mere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute.” The district court denied the requested language, noting the court’s instruction defining “possession with intent to distribute” is the circuit’s model jury instruction, and the model instruction is adequate. Model Criminal Jury Instruction of the Eighth Circuit § 6.21.841A. B. Mere Presence Instruction In this circuit a defendant is entitled to an instruction on his theory of defense, if there is evidence to support the instruction, and if the instruction contains a correct statement of the law. United States v. Gonzales, 90 F.3d 1363, 1371 (8th Cir.1996); United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir.1994)." }, { "docid": "10891048", "title": "", "text": "Pat Carstensen and as such, we deem the record sufficient upon which to base a conviction. With respect to the admission of the telephone toll records, such evidence is highly probative of criminal conduct. We find no abuse of discretion in the district court’s admitting them for the consideration of the jury. IV. INADEQUACY OF INSTRUCTION Schoenfeld requested that the court follow the Eighth Circuit Pattern Instruction 6.04 as to the testimony of an accomplice. Specifically, Schoenfeld argues that the last sentence of the instruction to the effect that the jury should consider the testimony of an accomplice with greater caution than that of an ordinary witness should have been given. This Court has held such language to be required only where the witness’s testimony concerning the defendant’s participation in the offense is uncorroborated, and that where the testimony is corroborated, the absence of such language is not error. United States v. McGinnis, 783 F.2d 755, 758 (8th Cir.1986). The Eighth Circuit Pattern Jury Committee has considered this language as not mandating use whenever an accomplice testifies. Although we have held that such pattern jury instructions are helpful to the trial judge, they do not constitute adjudicative approval which must await case-by-case review by the appellate court. United States v. Ridinger, 805 F.2d 818, 821 (8th Cir.1986). This Court recently reaffirmed its decision in Esters v. United States, 260 F.2d 398, 397 (8th Cir.1958) to the effect that no absolute and mandatory duty is imposed upon the trial court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution. United States v. Schriver, 838 F.2d 980, 983 (8th Cir.1988). Moreover, upon review of the record in this case, we find that the testimony of the accomplice Pat Carstensen was corroborated by other direct and circumstantial evidence. Accordingly, we find no error in the instruction as given. The jury was properly charged as to its duty to determine credibility. The judgment of conviction is affirmed. . Counts 1 and 4 charged Gary Schoenfeld with distribution of methamphetamine in violation of 21 U.S.C. §§" }, { "docid": "23103455", "title": "", "text": "“misde-fined the government’s burden” by suggesting a “more likely than not,” or “clear and convincing,” rather than a “beyond a reasonable doubt,” standard of proof. Malone raises similar objections. The “beyond a reasonable doubt” standard is a bedrock due-process requirement, but, like most constitutional standards, it does not come in a ready-made package. See Victor v. Nebraska, 511 U.S. 1, -, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (“[T]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.”). We have repeatedly rejected challenges to the “mere possibility of doubt” language used in this case. See United States v. Simms, 18 F.3d 588, 593 (8th Cir.1994); United States v. Mabry, 3 F.3d 244, 249 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1403, 128 L.Ed.2d 75 (1994); see also Victor, 511 U.S. at ---, 114 S.Ct. at 1248-49 (rejecting challenge to “not a mere possible doubt” language). The instruction used in this case strikes us as a helpful and accurate way of communicating the correct standard of proof to the jurors. After all, it is possible to have doubts that are not reasonable. 2. Multiple-Conspiracy Instruction Jones and Malone insist that there were three drug conspiracies involved in this case, and that the District Court erred in refusing to give a multiple-conspiracy instruction. There may have been common actors, he argues, but there were several separate criminal agreements. Malone urges a similar argument. A trial court should give a multiple-conspiracy instruction when, and only when, the evidence supports it. United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996). The Malone/Saunders operation involved several players with different tasks, but Jones and Malone point to no evidence that undercuts the government’s theory that these players and tasks were part of a single conspiracy, the one charged in Count 7. See United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir.1994) (although “ Various defendants entered the conspiracy at different times and performed different functions, the" }, { "docid": "10891047", "title": "", "text": "(8th Cir.1988) (citations omitted). Upon the record it does not appear that there has been any abuse of discretion in the order denying severance. Under Fed.R.Crim.P. 14, if it appears that a party is prejudiced by such joinder, severance may be granted. Adkins at 211. The motion to sever is addressed to the sound discretion of the Court. We find no abuse of discretion here. Based upon the verdict of the jury, it is clear that the jury was able to compartmentalize the evidence and we accordingly hold that Schoenfeld’s claim of abuse of discretion is not meritorious. III. INSUFFICIENCY OF EVIDENCE This Court has examined the record in this case and finds ample direct and circumstantial evidence to sustain the conviction. Schoenfeld’s argument that the evidence was insufficient by reason of the fact that the only witness was Pat Carsten-sen, an admitted accomplice, similarly is too narrow of a characterization of the evidence. The court’s instructions adequately informed the jury as to its burden and duty as relates to the credibility of the witness Pat Carstensen and as such, we deem the record sufficient upon which to base a conviction. With respect to the admission of the telephone toll records, such evidence is highly probative of criminal conduct. We find no abuse of discretion in the district court’s admitting them for the consideration of the jury. IV. INADEQUACY OF INSTRUCTION Schoenfeld requested that the court follow the Eighth Circuit Pattern Instruction 6.04 as to the testimony of an accomplice. Specifically, Schoenfeld argues that the last sentence of the instruction to the effect that the jury should consider the testimony of an accomplice with greater caution than that of an ordinary witness should have been given. This Court has held such language to be required only where the witness’s testimony concerning the defendant’s participation in the offense is uncorroborated, and that where the testimony is corroborated, the absence of such language is not error. United States v. McGinnis, 783 F.2d 755, 758 (8th Cir.1986). The Eighth Circuit Pattern Jury Committee has considered this language as not mandating use whenever an" }, { "docid": "8056030", "title": "", "text": "BOWMAN, Circuit Judge. Joe Harris appeals his conviction and sentence on drug-related conspiracy and distribution charges. For reversal of his conviction, he argues that the District Court deprived him of due process by improperly instructing the jury on the government’s burden of establishing guilt beyond a reasonable doubt. As to the sentence, Harris contends that the District Court erred in denying him a two-level reduction for his role in the offense. We affirm. We turn first to the challenged instruction. Over Harris’s timely objection, the District Court read to the jury Eighth Circuit Model Instruction 3.11, which defines “reasonable doubt” as follows: A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Jury Instruction 3.11 (1989) (emphasis added). Harris attacks the first sentence of this instruction. Specifically, he argues that the phrase “and not the mere possibility of innocence” tended to lower impermissibly the government’s burden of proof. We disagree. In United States v. Wilkerson, 691 F.2d 425 (8th Cir.1982) (per curiam), we rejected the defendant’s attack on a substantially identical instruction defining reasonable doubt. Like the instruction in the present case, the instruction in Wilkerson defined reasonable doubt not only in terms of a doubt sufficient to make a reasonable person hesitate to act, but also as being a doubt based on reason “and not the mere possibility of innocence.” Wilkerson, 691 F.2d at 427 n. 3. We held that the trial court did not err in giving this instruction. In doing so, we relied upon our prior decisions to the same effect in United States v. Robertson, 588 F.2d 575, 579 (8th Cir.1978), cert. denied, 441 U.S." }, { "docid": "23162732", "title": "", "text": "the DEA chemist’s testimony that his tests relied used industry standards, that Abbas’ right of Confrontation was not denied. Abbas could have directly rebutted the weight of the standards evidence by proffering his own expert testimony and by vigorously cross-examining the DEA chemist. V. Finally, we turn to Abbas’ contention that the district court erred in its jury instruction. The decision of whether to give a jury instruction and the content of an instruction are reviewed for abuse of discretion. United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.1992), cert. denied, 506 U.S. 1066, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993). Abbas contends the district court erred in giving an instruction on “willful blindness.” Abbas also argues the district court should have given an instruction defining reasonable doubt. In rejecting each of Abbas’ arguments, we hold that the district court did not abuse its discretion because the instructions were properly submitted to the jury in both form and substance. A. Abbas first contends that the district court erred in giving the standard jury instruction on willful blindness. “A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge but the evidence supports an inference of deliberate ignorance.” United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993). Moreover, where the evidence presented in the case supports both actual knowledge on the part of the defendant and deliberate ignorance, a willful blindness instruction is proper. Id. at 974; United States v. Arias, 984 F.2d 1139, 1143 (11th Cir.), cert. denied, — U.S.-, 113 S.Ct. 2979, 125 L.Ed.2d 676 (1993). Abbas maintains however, that there was no trial evidence of willful blindness and that, by the mere fact the instruction was given, the jury may have erroneously construed that the government had produced such evidence. We conclude the record demonstrates that Abbas’ claim is meritless. Abbas’ defense centered on his claim that he thought the transaction involved gemstones and not heroin. His defense, therefore, met the first requirement for a willful blindness instruction — the" }, { "docid": "16876032", "title": "", "text": "don’t take notes the way that you do, that are asked to remember everything from five years. Neither Mabry nor David Edwards objected to this comment. Nor did they object to the district court’s instruction on reasonable doubt, which was taken from Eighth Circuit Model Jury Instruction No. 3.11. Mabry argues that the prosecutor’s attempt to relate the reasonable doubt standard to “real life” was confusing and improper. However, the prosecutor’s last two comments were consistent with the court’s instruction on the subject, an instruction we have repeatedly approved. See United States v. Harris, 974 F.2d 84, 85 (8th Cir.1992). Therefore, although we have cautioned that “prosecutors would be well advised to avoid trying to explain to the jury the meaning of ‘beyond a reasonable doubt,’ ” United States v. Drew, 894 F.2d 965, 969 (8th Cir.), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990), the district court did not err. II. Calvin Edwards A. Count XX of the indictment charged that Calvin Edwards used a rifle in relation to the drug trafficking conspiracy on October 20, 1989, in violation of 18 U.S.C. § 924(c). Count XXV charged Edwards with using a different firearm in relation to the conspiracy on November 14, 1990. The jury convicted Edwards of both offenses. Edwards argues that the district court erred in imposing a five-year sentence on Count XX and a consecutive twenty-year sentence on Count XXV as a “second or subsequent” § 924(c) conviction. It is now settled in this Circuit that the second of two § 924(c) convictions from the same indictment qualifies for the twenty-year consecutive sentence. See United States v. Jones, 965 F.2d 1507, 1518 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993). Relying on United States v. Freisinger, 937 F.2d 383 (8th Cir.1991), Edwards argues that Count XXV cannot be treated as a “second or subsequent conviction” because both § 924(c) counts were based on the same underlying conspiracy offense. In Freisinger, defendant was convicted of possession with intent to distribute cocaine and four § 924(c) counts, one for" }, { "docid": "3980562", "title": "", "text": "show extrajudicial bias on the part of the trial court, we must deny their motion for a new trial on this basis. Assuming that 28 U.S.C. § 144 is not applicable to this case, we do not believe that any of the appellants’ specific allegations of bias have merit. Appellants claim that the court harbored a bias against the law stated in Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir. 1982) . In its order denying the motion for new trial, the district court stated that its alleged “excoriation” of the Gibson opinion was a blatant misstatement and bordered on contempt, and that the court’s dissatisfaction was with “counsel’s repeated citation of Gibson for propositions foreign to the holding, dicta, and rationale of the opinion.” Order at 11-12. We find nothing in the record which would suggest that the district court did anything but follow the law as set out in Gibson. Appellants also claim that the court erred in giving an instruction which is contrary to the rule set out in Gibson. The instruction stated that [y]ou will note that the Act does not require that advanced age, substantial length of service or seniority entitled employees to special favorable consideration, except as I have stated the statute to provide. This instruction is taken almost verbatim from Manville v. ACTION, No. 79-1103 (D.D.C. August 13, 1980). We do not believe that the court committed error in including this instruction in order to dispel the notion that the broad experience of the appellants would give them bumping rights throughout the plant. Appellants also maintain that the court erred in failing to include in its charge Plaintiffs’ Proposed Instruction Aril, Third Set, an instruction on damages patterned after Gibson. We have considered the appellants’ argument and conclude that the district court has committed no error. Even if the court erred, it was not prejudicial to the appellants because the jury did not reach the damages issue. Finally, appellants assert error in the district court’s rejection of their testimony, as to their qualifications for other jobs as showing disapproval of the" }, { "docid": "23112023", "title": "", "text": "business. This Court remanded because the evidence of the charged offense, possession of the shotgun, was weak and because there was insufficient evidence that Ridlehuber had committed the extrinsic act of operating a clandestine drug lab. Ridlehuber is inapposite to the case before us. Capers testified that Gibson made multiple deliveries of methamphetamine to him. ‘ Secondly, Hazelton’s testimony, the fingerprint, and the evidence that Gibson made an admission to a law officer at the time of the search make a much stronger case against Gibson on the charged offense than the circumstantial evidence relied on in Ridlehuber. We therefore hold that the district court did not abuse its discretion in admitting Capers’s testimony. b. Limiting instruction Although Gibson failed to request a limiting charge, we review the court’s charge, complained about for the first time on appeal, for plain error. United States v. Parziale, 947 F.2d 123, 129 (5th Cir.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1499, 117 L.Ed.2d 638 (1992). Under this standard of review, Gibson must show that the charge as a whole was “deficient so as to result in a likelihood of a grave mistake of justice.” Id. We must determine whether the need for the instruction was so obvious that the failure to give it affected the defendant’s substantial rights. United States v. Prati 861 F.2d 82, 86 (5th Cir.1988). In Prati this Court found that there was no danger of a serious miscarriage of justice because the court carefully instructed the jury as to the offenses charged, the elements, and what the jury must find to convict the appellant, then added, “The defendant is not on trial for any act or conduct or offense not alleged in the indictment.” Id., at 87. The court below likewise instructed the jury on the elements necessary to convict Gibson and used language identical to that approved in Prati to limit their consideration to the charged offense. Gibson’s claim that there was plain error in the district court’s charge is without merit. SUFFICIENCY OF THE EVIDENCE a. Conspiracy and possession of a precursor chemical Gibson contends that" }, { "docid": "16739645", "title": "", "text": "was “overwhelming”). B. Jury Instructions Next, Spires argues that the district court erred when it rejected his proposed jury instructions regarding cooperating witness testimony and the definitions of “crack cocaine” and “reasonable doubt.” We review a district court’s jury instructions for abuse of discretion and “affirm if, taken as a whole, [the instructions] fairly and adequately instruct the jurors on the applicable law.” United States v. Haas, 623 F.3d 1214, 1219 (8th Cir.2010). Notably, “[a] defendant is not ... entitled to a particularly worded instruction.” United States v. Beale, 620 F.3d 856, 866 (8th Cir.2010). The district court used instructions based on Eighth Circuit Model Jury Instruction 4.05A to advise the jury regarding cooperating witness testimony. In relevant part, the district court’s instruction advised jurors to “give the testimony of [cooperating] witnesses such weight as you think it deserves.” Spires argues that the district court abused its discretion by denying his request to instruct the jury to consider the testimony of cooperating witnesses with “caution and great care.” In United States v. Worthing, 434 F.3d 1046, 1050 (8th Cir.2006), we held that such a “cautionary tail” instruction is not necessary where cooperating witness testimony is corroborated by other evidence presented in the case, including the testimony of other cooperating witnesses. In the present case, cooperating witness testimony was corroborated by other cooperating witness testimony as well as the evidence found in Spires’s apartment. Therefore, the district court did not abuse its discretion when it refused Spires’s request to attach a “cautionary tail” to the instruc tions pertaining to cooperating witness testimony. Next, Spires challenges the district court’s use of Eighth Circuit Model Jury Instruction 3.11 to instruct the jury regarding the definition of “reasonable doubt.” Instruction 3.11 provides, A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon" }, { "docid": "4508129", "title": "", "text": "handgun from the trash can outside the restaurant doors. Finally, St. Louis County firearm and tool-mark examiner William George testified that he examined the gun and the cartridges and determined that the cartridges were the appropriate ammunition for the gun. The members of the jury were free to attribute whatever weight they chose to the testimony of these five witnesses. See United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992). Because this testimony could easily lead a reasonable jury to find beyond a reasonable doubt that Patterson possessed a gun and ammunition, the District Court properly denied Patterson’s motion for judgment of acquittal. Patterson next argues that the Eighth Circuit Model Jury Instruction on reasonable doubt given at trial violated his due process rights because it is ambiguous and lowers the government’s burden of proof. Specifically, Patterson challenges the “mere possibility of innocence” language of the instruction. This Court has upheld the constitutionality of this language in a number of cases making the same claim that Patterson makes now. See, e.g., United States v. Foster, 344 F.3d 799, 802 (8th Cir.2003), cert. denied, 541 U.S. 1031, 124 S.Ct. 2096, 158 L.Ed.2d 713 (2004); United States v. Rosso, 179 F.3d 1102, 1104 (8th Cir.1999); United States v. Simms, 18 F.3d 588, 593 (8th Cir.1994); United States v. Harris, 974 F.2d 84, 85 (8th Cir.1992). We are bound by this precedent and therefore hold that the instruction was proper. See Foster, 344 F.3d at 802; United States v. Olness, 9 F.3d 716, 717 (8th Cir.1993), cert. denied, 510 U.S. 1205, 114 S.Ct. 1326, 127 L.Ed.2d 674 (1994). II. Patterson’s challenges to his sentence are based on the Supreme Court’s recent decision in United States v. Booker, — U.S. --, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Patterson failed to make any sentencing objections in the District Court, we review his Booker claims for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). Plain error review is governed by the four-part test set forth in" }, { "docid": "9889960", "title": "", "text": "case if there is evidence to support it.” United States v. Thomas, 895 F.2d 51, 55 (1st Cir.1990) (quoting United States v. Leach, 427 F.2d 1107, 1112-13 (1st Cir.1970)). However, the refusal to give a particular requested instruction is reversible error only if “the instruction (1) is substantively correct; (2) was not substantially covered in the charge actually delivered to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant’s ábility tó effectively' present a given defense.” United States v. Gibson, 726 F.2d 869, 874 (1st Cir.1984) (quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir.1981)). Consequently, “[t]he court need not give instructions in the form and language requested by the defendant.” United States v. Morris, 700 F.2d 427, 433 (1st Cir.1983). With regard to testimony given by an accomplice, this Court has stated: It is well established that an accomplice is qualified to testify as long as any agreements he has made with the government are presented to the jury and the judge gave complete and correct instructions detailing the special care the jury should take in assessing the testimony. United States v. Hernández, 109 F.3d 13, 15 (1st Cir.1997) (internal quotation omitted). Here, the, trial judge instructed the jury to examine the testimony of an alleged accomplice “who provides evidence against a defendant for personal advantage under a plea agreement ... with greater care and caution than the testimony of an ordinary witness.” The judge further instructed the jury (1) that they must consider such a witness’s sentencing expectations and (2) that it is improper to convict any defendant “upon the unsupported testimony of such witness- unless you believe the testimony beyond a reasonable doubt.” We conclude that the judge properly instructed the jury on issues of credibility and reject appellant’s allegation of error. See, e.g., Hernández, 109 F.3d at 15; Gibson, 726 F.2d at 874. B. Collazo-Aponte’s Argument Collazo-Aponte raises a closely related argument regarding the testimony of Wilfredo and David Martinez-Matta. Namely, .Collazo-Aponte contends that the Martinez-Mattas’ post-conviction cooperation agreements violated 18" }, { "docid": "18937088", "title": "", "text": "we conclude a reasonable jury could reject the testimony of Waterloo’s witnesses and find that Ross caused Forshee’s termination because she had rejected his sexual advance. Accordingly, the district court properly denied Waterloo’s motion for judgment as a matter of law. II. Damage Issues Waterloo challenges both components of the compensatory damages awarded Forshee by the jury. Regarding the award of $10,369 in lost wages, Waterloo argues it was based upon the speculative theory that Forshee would have become a full-time Waterloo employee had she not been terminated, whereas the evidence established that Waterloo would have laid off Forshee along with its other temporary employees in December 1995 due to the cyclical nature of its business. We reject this contention for two interrelated reasons. First, it was not properly preserved because Waterloo did not include in the record on appeal whatever portion of the trial record, such as For-shee’s damage exhibits or closing argument, would permit us to infer how the jury might have calculated this portion of its damage award. Second, Waterloo’s contention that no lost wages could be awarded after December 1995 is obviously wrong. Waterloo first employed Forshee as a temporary employee for six months in the last half of 1994. She was hired again in that capacity in May 1995, and there was testimony by Waterloo witnesses that the company regularly hired temporary employees to meet its cyclical needs during the last half of each year. Thus, even if the theory that Forshee would have been made a full-time employee is quite speculative, that does not undermine the jury’s relatively modest award for lost wages. Waterloo complains that the district court instructed the jury to award damages for the entire back pay period, as in Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1098-99 (8th Cir.1982). But we read the instruction as simply defining the back pay period and letting the jury decide how much Forshee would have earned at Waterloo had she not been wrongfully terminated. The lost wages portion of the judgment is affirmed. Waterloo next argues the district court erred in submitting the" }, { "docid": "8423072", "title": "", "text": "marijuana possession in support of the marijuana distribution and money laundering counts without giving proper notice under Fed.R.Evid. 404(b). Not only did defense counsel fail to object to the admission of this evidence, but he in fact helped prepare the exhibit supporting it and stipulated to its admission. He also used the prior conviction in his opening statement. We need not conduct plain error review here because Tulk deliberately waived his right to object. See Olano, 507 U.S. at 733, 113 S.Ct. 1770 (waiver extinguishes error under 52(b)); United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir.1997). Tulk also claims that the district court committed reversible error in its instructions to the jury, but after reviewing the record we conclude that he has not shown that the court erred or abused its discretion in instructing the jury. Tulk complains the court failed to instruct the jury that the testimony of witnesses testifying pursuant to plea bargains should be given “greater care and special caution.” The court instead told the jury that the testimony of such witnesses “should be weighed with care,” and that “[w]hether or not such a witness’s testimony may have been influenced by the individual’s desire to please the government or to strike a good bargain with the government about the witness’s own situation is for you to determine .” Tulk did not timely object but now argues that the district court should have issued a “greater care and special caution” instruction sua sponte. A defendant “is not entitled to a particularfy worded instruction where the instructions given ... correctly state the applicable law and adequately and fairly cover the substance of the requested instruction.” United States v. Parker, 32 F.3d 395, 400 (8th Cir.1994). Accord United States v. Reda, 765 F.2d 715, 719 (8th Cir.1985). Furthermore, a defendant is not entitled to an instruction explicitly saying that the testimony of immunized witnesses should be considered with “greater care and special caution” when there has been corroboration of witness testimony. See United States v. Gibson, 105 F.3d 1229, 1233 (8th Cir.1997). Such corroborating evidence may be circumstantial" }, { "docid": "6726845", "title": "", "text": "that this instruction was prejudicial to him because it presumed he was guilty of illegal activities and instructed the jury not only that he was guilty, but that he was the only person in control of the illegal substances found in the household. He argues that, in effect, the instruction directed a verdict against him. The government agrees that the instruction was erroneous and prejudicial, but argues that the error was harmless in the present case. The government argues that the instruction was a variation of the “mere presence” instruction and was given as an amplification of the aiding and abetting instruction, which presumes that someone else must have committed the offense before the theory of vicarious criminal liability can cause the aider and abetter to be convicted. We hold that the giving of the “mere presence” instruction was not reversible error. When viewed in light of the entire record, United States v. Smith, 596 F.2d 319, 322 (8th Cir.1979), and when the instructions are viewed as a whole, United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir.1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977), the instructions set forth the concept of separate liability as to each defendant, and therefore, any error was harmless to appellant Gibson. We recommend, however, that the district courts avoid giving this type of instruction in the future. SENTENCING ENHANCEMENT Gibson next argues that the district court erred in sentencing him pursuant to the sentence enhancement statute, 18 U.S.C. § 924(e)(1). Section 924(e)(1) mandates a minimum sentence of fifteen years without probation or parole for persons having three or more prior convictions for a violent felony or a serious drug offense and defines the term “violent felony” to include burglary. 18 U.S.C. § 924(e)(2)(B). Gibson has three prior second degree burglary convictions. He argues each burglary involved the theft of property from vacant business offices after hours and thus is not a “violent felony” as defined by 18 U.S.C. § 924(e)(2)(B). Gibson further argues that even if the three burglary convictions can be construed as violent felonies for purposes" }, { "docid": "23422361", "title": "", "text": "the packages seized from the Avalanche on February 20, 2009. His counsel’s disclaimer of an intent to argue that Sidney Gibson did not know the packages contained cocaine was not a stipulation of knowledge. Sidney Gibson’s prior arrest in 2003 was relevant to prove James Gibson’s participation in the cocaine trafficking activities because James Gibson had rented the car in which Sidney Gibson was transporting cocaine. The district court limited the prejudicial effect of the evidence of Sidney Gibson’s prior arrest and conviction by providing contemporaneous limiting instructions and by repeating those limiting instructions during the jury charge. We must assume the jury followed these instructions. United States v. Butler, 102 F.3d 1191, 1196 (11th Cir.1997). The district court did not plainly err in instructing the jury. The district court instructed the jury repeatedly that it was the burden of the government to prove beyond a reasonable doubt the facts necessary for the jury to find Sidney Gibson guilty of the charged offenses. The district court also instructed the jury that it could not consider statements made by the district court other than its instructions on the law when the jury “arriv[ed] at [its] decision concerning the facts.” We conclude that “the jury instructions, taken together, accurately express the law applicable to the case without confusing or prejudicing the jury.” Beasley, 72 F.3d at 1525. C. Leondray Gibson’s Arguments About Evidence of Dog Fighting and the Reasonableness of His Sentence Fail. Leondray Gibson raises two arguments. First, he argues that the district court abused its discretion when it admitted evidence of his involvement in dog fighting. Second, he argues that his sentence is unreasonable. These arguments fail. 1. The District Court Did Not Abuse Its Discretion When It Admitted Testimony About Leondray Gibson’s Participation in Dog Fighting. Leondray Gibson argues that the district court abused its discretion when it admitted testimony about his participation in dog fighting because the probative value of that evidence was substantially out weighed by the danger that it would unfairly prejudice the jury. Leondray Gibson contends that the limiting instructions about this testimony did not" }, { "docid": "6726844", "title": "", "text": "determination. Suppression is an appropriate remedy if the judge, in issuing the warrant, was misled by information in the affidavit that the affiant knew or would have known it was false except for the affiant’s reckless disregard for the truth. Evidence should be suppressed only if the affiant-officer could not have harbored an objectively reasonable belief in the existence of probable cause. Id. at 921-23; e.g., United States v. Stelten, 867 F.2d 446, 451 (8th Cir.), cert. denied, — U.S. —, 110 S.Ct. 95, 107 L.Ed.2d 59 (1989); United States v. Martin, 833 F.2d 752, 756 (8th Cir.1987), cert. denied, — U.S. —, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). In the instant case there is no indication that in obtaining the warrant the police failed to disclose material information to the issuing judge. Hence, the district court did not commit reversible error in denying Gibson’s motion to suppress. MERE PRESENCE Gibson next argues that the district court erred in giving the jury a constructive possession instruction at the request of co-defendant Carrow. Gibson argues that this instruction was prejudicial to him because it presumed he was guilty of illegal activities and instructed the jury not only that he was guilty, but that he was the only person in control of the illegal substances found in the household. He argues that, in effect, the instruction directed a verdict against him. The government agrees that the instruction was erroneous and prejudicial, but argues that the error was harmless in the present case. The government argues that the instruction was a variation of the “mere presence” instruction and was given as an amplification of the aiding and abetting instruction, which presumes that someone else must have committed the offense before the theory of vicarious criminal liability can cause the aider and abetter to be convicted. We hold that the giving of the “mere presence” instruction was not reversible error. When viewed in light of the entire record, United States v. Smith, 596 F.2d 319, 322 (8th Cir.1979), and when the instructions are viewed as a whole, United States v. Kirk, 534 F.2d" } ]

[ { "docid": "9617344", "title": "", "text": "HUTCHESON, Chief Judge. Appealing from a judgment remitting as to appellee, claimant below, the forfeiture of a Dodge Truck, but taxing the costs against the claimant, the United States is here insisting that the court erred in remitting the forfeiture. The primary reason assigned by it is that the evidence showed, and the court found, that, though the ostensible purchaser of the car and maker of the paper purchased by claimant was without any record or reputation as a violator, one who had such a record was a secret owner of a part interest in the car. The secondary reason was: that the evidence did not acquit the dealer from whom the paper was purchased of bad faith in making the sale; that, under the representations accompanying the assignment oif the conditional sales contract and note, the claimant could have 'had recourse against it; and that, rather than remitting the forfeiture, the court should have remitted the claimant to his action on these representations. The appellee, relying on the findings of the court, insists: that the case is ruled by our case of United States v. Automobile Financing, Inc., 5 Cir., 99 F.2d 498, affirmed in 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; and that, as was held of the judgment in that case, the entry of the judgment here was well within the discretion confided to the district judge. We agree. There is nothing in the findings of the court or in the record to support the contention that claimant, as assignee of the paper, had any recourse for the moneys advanced on account of it, against the dealer from whom it took it. Moreover, there is nothing in the statute or in any of the controlling decisions which supports the view advanced by the appellant that where it is made to appear that a claimant for remission may, in addition to his claim to the car, have a cause of action to the sums advanced on account of its purchase of the paper, remission of forfeiture must he denied. This is not to say that the" } ]

[ { "docid": "2032940", "title": "", "text": "HUTCHESON, Circuit Judge. With unquestioned sincerity, with a persistence and indomitableness, apparently invincible, and with varying vicissitudes, the appellant Beaudry, a dealer in automobiles, has through three trials and three appeals, including this one, pursued a Ford automobile, seized by the Government for forfeiture under the Revised Statutes, Section 3450, 26 U.S.C.A. §§ 1156, 1441. Matching him in sincerity and persistence, and victor below on the claim for remission, the Government meets him in the lists, on this his third appeal, opposing thrust for thrust, and blow for blow. This derring do, this stubbornness of attack and defense, have imparted to and invested the cause with a dignity and importance, wholly out of proportion To the value of the Ford car involved. Sensitive to, if not sensible of, appellant’s claim that the judgment of the trial court in rejecting his claim was an abuse of discretion, we have subjected the record to the most careful scrutiny in the light of the opposing claims. These are the facts, simple and without dispute. One Yeager, as agent for appellant, selling automobiles for him on commission, colluded with one Karr, a known violator, to sell him a car in the name of one E. E. Harper, a person without record or reputation, of violating the liquor laws. Pursuant to this collusion, which was without the knowledge of Harper, and also of appellant, except as the knowledge of Yeager as his agent was imputed to him, the papers were made out in the name of, the car was ostensibly sold to E. E. Harper, and his signature was forged. The District Judge concluding that the knowledge and actions of Yeager, as appellant’s agent, were imputed to his principal, and that appellant’s personal innocence, and his ignorance of the fraud and forgery were entirely immaterial, denied both remission and mitigation of the forfeiture. In United States v. Automobile Financing Co., 5 Cir., 99 F.2d 498, affirmed United States v. One 1936 Model Ford, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249, and in United States v. One 1938 Chevrolet Model, 5 Cir., 106 F.2d" }, { "docid": "21347877", "title": "", "text": "the evidence that defendants are not reasonably proceeding with the developments required by the implied covenants of the lease, and that plaintiffs’ remedy at law is inadequate, it is competent for the chancellor to frame a decree requiring development operations to begin within a time fixed, upon pain of forfeiture. Each case must, of course, stand upon its own facts. In each case the chancellor must determine whether the particular facts justify the particular relief granted. The evidence fully heard in this case, consisted, in part, of testimony of plaintiffs’ witnesses that reasonably prudent operators not only would, but had actually, within the period of time in controversy, offered to, drill plaintiffs’ property. Appellants, bringing within the compass of a single view not only the leases to the 5,000 acres of land they held under appellees, but the 75,000 acres they held under others, and urging that they had a right to proceed with ratable and proportionate development of the whole block, insist that the District Judge’s view, in focusing upon appellees’ lease, was too foreshortened. They insist, in short, that the evidence as to their holdings in that territory, taken and viewed as a whole, does not support the finding that from March to December, 1934, there was undue delay on their part in drilling appellees’ property. They argue that the District Judge, in concluding that appellants were remiss in their obligations to develop, must have taken into consideration the time elapsed between December, 1934, and the time of the decree. They insist that if he did so, he erred, for upon general principies, and by the express terms of the lease itself, appellees’ actions in attempting in December, 1934, to forfeit the lease, and in thereafter bringing this suit, excused appellants from further development until the controversy appellees had raised was finally settled. We cannot agree with appellants that the evidence is insufficient to support the District Judge’s findings that a reasonably prudent operator in appellants’ position, acting in good faith, would have prosecuted additional development between March and December, 1934, and his conclusion that appellees should have" }, { "docid": "23452433", "title": "", "text": "GODBOLD, Circuit Judge. This appeal is from a proceeding brought by the United States pursuant to 49 U.S.C.A. § 782 to enforce forfeiture of an automobile used to transport heroin in violation of 49 U.S.C.A. § 781. The National Bank of New Orleans intervened in the forfeiture action as holder of a chattel mortgage and vendor’s lien on the car, given as security for a loan made to the owner, Mrs. Myrtle Brooks, whose husband had used the ear to transport heroin. The Bank alleged that it was innocent of any wrongdoing, that it had duly applied to the Attorney General, under 19 U.S.C.A. § 1618, for remission and mitigation of the forfeiture to the extent of its interest in the car, and that the Attorney General had denied its request. The Bank urged that the Attorney General’s decision was reviewable by the District Court and that failure to grant remission would violate the due process and just compensation provisions of the Fifth Amendment. The District Court held that the Attorney General’s denial of the Bank’s claim for remission was unreviewable and found the Bank’s constitutional arguments to be without merit. The Bank appeals and we affirm. The question of our authority to review the Attorney General’s denial of the request for remission of the forfeiture is controlled by the long-standing, judge-made rule that the Attorney General has unreviewable discretion over petitions under 19 U.S.C.A. § 1618. United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964); United States v. Kemp, 186 F.2d 808 (10th Cir. 1951); United States v. Gramling, 180 F.2d 498 (5th Cir. 1950); United States v. One 1957 Buick Roadmaster, 167 F.Supp. 597 (E.D.Mich.1958). See also General Finance Co. of Louisiana v. United States, 45 F.2d 380 (5th Cir. 1930) (denying review of an official adverse decision of a mitigation petition under the Tariff Act of 1922, 42 Stat. 987, 19 U.S.C.A. § 532, the pertinent part of which was couched in language identical to that now in 19 U.S.C.A. § 1618); United States ex rel. Walter E. Heller & Co. v. Mellon, 59" }, { "docid": "2919846", "title": "", "text": "net worth and apparently owned no property. The United States urges upon us that Shaw and Draper should be held to their obligation because they failed to resort to a surety’s time-honored right of self-help. It is difficult to conceive what they could have done to obtain Kirk-man’s presence at trial. It does not appear that they knew of and had opportunity to prevent him from conspiring with others to “fake” an automobile accident and subsequent hospitalization. Once he had been hospitalized they could scarcely be expected to drag him from his apparent sickbed in order to bring him to court. The district judge noted in his opinion that Shaw and Draper “made no offer to have the defendant physically examined to determine whether his alleged injuries were real or imaginary, or to otherwise cooperate with the court in any respect.” But very soon after his failure to appear Kirkman was placed under guard in the hospital and, upon discharge from the hospital, was kept in jail until he was tried. An examination by an independent medical specialist was accomplished. It is difficult to see what Shaw and Draper could have done that would have been helpful to the court. We recognize that forfeiture and remission are matters within the sound discretion of the district judge. See, e. g., Brown v. United States, 410 F.2d 212 (5th Cir. 1969); United States v. Egan, 394 F.2d 262 (2d Cir. 1968), cert. denied, 393 U.S. 838, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968); Sifuentes-Romero v. United States, 374 F.2d 620 (5th Cir. 1967); Fed.R.Crim.P. 46(f) (2). On review the question for this court is whether the district judge abused his discretion in refusing to order remission. See, e. g., Bennett v. United States, 368 F.2d 7 (8th Cir. 1966); United States v. Peerless Ins. Co., 343 F.2d 759 (2d Cir. 1965), cert. denied, 382 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76 (1965); United States v. D’Argento, 339 F.2d 925 (7th Cir. 1964); United Bonding Ins. Co. v. United States, 329 F.2d 152 (5th Cir. 1964). The legal standard we must apply" }, { "docid": "15379160", "title": "", "text": "HUTCHESON, Circuit Judge. Proceeding under Sec. 40a Title 27 U. S.C.A. the Financing Company sought the remission from forfeiture of a Ford automobile, seized while removing and concealing nontax paid liquor, in violation of Sec. 3450, Rev.St., 26 U.S.C.A. § 1441. Its claim was, as the innocent owner and holder in good faith of purchase money notes and lien on .the car, given by one William Robert Jenkins, a person without record or reputation of violating either State or Federal liquor laws. The United States opposed the remission on the ground that Jenkins was not the real, but only the pretended purchaser of the automobile; that the real purchaser and owner Was Robert L. McFarland, whose record and reputation as a liquor law violator was bad; and that under subdivision (b)(3) of Sec. 40a, 27 U.S.C.A., “the interest asserted by claimant arises out of”, or at . least, “is subject to, a contract or agreement under which a person having a record or reputation as a liquor -violator has a right with respect to the automobile.” The District Judge made findings fully supported by the record; that McFarland was the real purchaser and owner; that because of his own bad reputation as a liquor violator, he had procured Jenkins to appear as ostensible purchaser; tha't the Finance Company was, however, wholly unaware of this fact and prosecuted inquiries and purchased .the notes and lien in the good faith and reasonable belief that Jenkins was the purchaser; that Jenkins had a good reputation for character and for paying his debts, and that the Finance Company had a right to and did rely upon this record and reputation. He concluded that there was no duty or obligation upon the Company to investigate the record and reputation of McFarland, the real but secret purchaser of the car, and in the exercise of the discretion he thought the statute conferred on him, he ordered the forfeiture remitted. The United States is here insisting that, under the findings, the spirit and the purpose 'of the statute, as well as its literal terms, authorized, indeed required," }, { "docid": "2032941", "title": "", "text": "for appellant, selling automobiles for him on commission, colluded with one Karr, a known violator, to sell him a car in the name of one E. E. Harper, a person without record or reputation, of violating the liquor laws. Pursuant to this collusion, which was without the knowledge of Harper, and also of appellant, except as the knowledge of Yeager as his agent was imputed to him, the papers were made out in the name of, the car was ostensibly sold to E. E. Harper, and his signature was forged. The District Judge concluding that the knowledge and actions of Yeager, as appellant’s agent, were imputed to his principal, and that appellant’s personal innocence, and his ignorance of the fraud and forgery were entirely immaterial, denied both remission and mitigation of the forfeiture. In United States v. Automobile Financing Co., 5 Cir., 99 F.2d 498, affirmed United States v. One 1936 Model Ford, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249, and in United States v. One 1938 Chevrolet Model, 5 Cir., 106 F.2d 985, we have made it clear that while the District Judge may, he is not compelled to, exercise his discretion in remitting a forfeiture, even where the minimum statutory conditions are complied with, if there are facts and circumstances which give an unsatisfactory color or character to the transaction, and that it would be only in the most extreme case that his discretion in refusing or granting a remission would be reviewed. Appellant is fully mindful of these authorities and the principles they announce. He seeks to avoid their effect, or rather to bring himself within them, by the insistence that the District Judge did not exercise a just discretion, in fact, exercised no discretion at all, but applying a principle without application here, he denied the relief upon the ground of the appellant’s imputed knowledge. Citing Mutual Life Insurance Co. of New York v. L. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202; Hodgson v. Hart et al., 165 Ga. 882, 887, 142 S.E. 267; Ohio Millers’ Mutual Insurance Co. v. Artesia" }, { "docid": "8894083", "title": "", "text": "HUTCHESON, Chief Judge. Appealing from a judgment of remission entered under Section 3617, Title 18 U.S. C.A., the United States is here insisting that the stipulation on which the question was tried below showed that claimant was within, but not in compliance with, subsection (b) (3) of the section. The appellee, relying upon: the stipulation showing that on the afternoon of June 16, 1950, claimant loaned the automobile in question “in good faith not knowing, or having any reason to believe, that the loanee would use the automobile” in violation of the law; the decision of the Supreme Court in United States v. One Model Ford, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; and the carefully stated reasoning of the district judge in support of his judgment; insists that subsection (b)(3) is without application. Appellant, stating that there is one question for consideration thus poses it: “Is a dealer in automobiles, who lends an automobile to a customer having at the time a reputation for violating laws of the United States and a State relating to liquor, required to make the ‘bootleg hazard’ investigation in accordance with Section 3617(b) (3) of Title 18, U.S.C.A. before the Court would be authorized to remit a forfeiture of the automobile ?” Appellee, not taking issue with this statement of the question except to suggest that it would be more accurately put if the reputation were particularized as it appears set out in stipulation six, note \"2, accepts appellant’s challenge to debate it on those grounds and urges with confidence that the district judge properly answered it in the negative and his decision must be affirmed. We agree with appellee. Because the district judge has carefully canvassed the question and as carefully given his reasons for his answer, and because we are in general agreement not only with the result he reached but with the reasons given by him, we will not unduly extend this opinion. .It will suffice for us to here reaffirm the obligatory nature and force of the conditions fixed in subsection (b) and the necessity for compliance with" }, { "docid": "1727640", "title": "", "text": "its discretion, requires it to do so. Jeffers v. United States, 588 F.2d 425, 427 n.1 (4th Cir. 1978) (citing United States v. Davis, 202 F.2d 621, 625 (7th Cir.), cert. denied, 345 U.S. 998, 73 S.Ct. 1141, 97 L.Ed. 1404 (1953)); cf. Carolina Casualty Ins. Co. v. United States, 283 F.2d 248 (5th Cir. 1960) (denial of remission affirmed despite absence of evidence of cost to the United States in reapprehending the defendant). Cervantes has cited no case in which this court has ordered remission simply because the amount of forfeiture exceeded the government’s expense. The Parr case involved circumstances and equities not present here. Parr failed to appear at a late afternoon hearing on an order to show cause why his bond should not be revoked; early the next morning, he committed suicide. Manges, who had deposited $75,000 with the district court as Parr’s bond, sought remission. The court remitted only $35,000. On Manges’ first appeal, we remanded to the district court (1) because there was inadequate support for the district court’s conclusion that Parr’s failure to appear was willful, and because Parr’s apparent insanity “might very well negate a finding of clear-cut willfulness”; (2) because the district court had relied on the expense to the government in limiting remission, but there was no evidence in the record concerning such expense; and (3) because it was unclear whether several other factors that the government had urged upon the district court — in particular, the government’s inability to punish Parr for his crimes — had played any part in the district court’s decision. United States v. Parr, 560 F.2d 1221, 1223-24 (5th Cir. 1977) (“Parr I”). On remand, the district court determined that Parr was not insane at the time of the show cause hearing, that the government’s actual costs were $2,000, and that the government had been prejudiced by its inability to punish Parr. 451 F.Supp. 190, 192-93, 195 (S.D.Tex.1978). The court again concluded that Manges was entitled to a remission of only $35,000. On appeal, we concluded that the district court had abused its discretion. First, we" }, { "docid": "3338688", "title": "", "text": "orderly progress of the trial and the fair administration of justice. Cf. Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed. 683 (1961) (per Harlan, J., as Circuit Justice). 395 F.2d 291 at 293. There is an additional reason for upholding the district court’s power to declare a forfeiture for breach of travel restrictions. As we noted previously, Rule 46 broadly prescribes bail procedures. Rule 46(f) (1) provides for a forfeiture for breach of any condition of release. In conjunction with the Bail Reform Act, Rule 46 was amended to liberalize bail procedures. But the forfeiture section of Rule 46 was not amended. One may infer from this omission, apparently deliberate, that Congress considered the forfeiture provision of the Rule would not be affected by the Act. We hold, therefore, that a district judge has the power to declare a forfeiture of bond for breach of travel restrictions imposed as a condition of release on bail. In the instant case, the district judge remitted $10,000 of the forfeiture to be applied to the new bond. Rule 46(f) (4) provides that a court may remit all or part of a forfeiture in the interest of justice. Imposition of forfeiture and remission are matters vested in the sound discretion of the district court. See Sifuentes-Romano v. United States, 5 Cir. 1967, 374 F.2d 620, 621; Estes v. United States, 5 Cir. 1965, 353 F.2d 283; United States v. Agueci, 2 Cir. 1967, 379 F.2d 277; Orfield, Criminal Procedure under the Federal Rules, § 46:129 (1956). We will not disturb a district judge’s remission unless there has been a clear abuse of discretion. Smith v. United States, 5 Cir. 1966, 357 F.2d 486, 490; United States v. Carolina Cas. Ins. Co., 7 Cir. 1956, 237 F.2d 451, 453. On review of the record as a whole, we cannot say that the district judge abused his discretion. Accordingly, we affirm the $15,000 forfeiture and $10,000 remission. We have considered but find it unnecessary to discuss in this opinion the questions raised on this appeal which are totally without merit. The judgment is affirmed. ." }, { "docid": "11816830", "title": "", "text": "HUTCHESON, Chief Judge. This appeal from a summary judgment for the plaintiff in a tax refund suit presents for decision: a primary question, whether the district judge erred in holding that, on the record made, there was no genuine issue of fact and plaintiff was therefore entitled to sum mary judgment; and the secondary one, whether the court erred in sustaining objections of the plaintiff to interrogatories propounded by the defendant. The United States, taking the affirmative as to both questions, is here urging that viewing the record as a whole, that is including in the view the interrogatories, the pleadings, and the affidavits, it was manifiest error for the judge not to require answers to the interrogatories and even more manifest error for him to proceed to summary judgment. Invoking the settled principle of law, that an action to recover taxes is in the nature of an action for money had and received, and the taxpayer must show by proof that the tax was overpaid, it insists that on the record plaintiff failed to show this either as matter of law or as matter of fact, Appellee, on his part, citing and relying on Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623; Powell v. U. S., 9 Cir., 123 F.2d 472, Athens Roller Mills v. Commissioner, 6 Cir., 136 F.2d 125, and standing and strongly relying on the conclusions of law of the district judge, insists that where as here, it is admitted that the deficiency assessment was based upon the acceptance by the commissioner of the agent’s report as to the facts and the commissioner’s erroneous conclusion as to the law, it ought to be held that the district judge was right when he said, “It did seem that if the information contained in the report was sufficient to justify an assessment and collection of the. additional tax, that the same information should be sufficient to justify a refund now that it appears the tax was illegally collected.” We cannot agree with the appellee’s view. This is not because the district judge would not" }, { "docid": "2032943", "title": "", "text": "State Bank, 5 Cir., 39 F.2d 400, 420, appellant is here insisting that the case the facts make is one for the application, not of the principle of imputed knowledge, but of the exception to it, in that here, the agent was acting not in the interest of his principal, but adversely to, and in fraud, of him. This will not do. Though improperly, and as it turned out, mistakenly, Yeager was acting in the interest of and not adversely to, his principal. The sale he made was intended by him to be, and if his scheme had worked out it would have been to his principal’s benefit. The fact that the desire to get a commission may have induced him to take a chance, which but for it he would not have taken, in no manner characterizes his action as against, rather than in, his principal’s interest, within the rule appellant invokes. Here, his every action, misguided and mistaken though it was, was intended for his principal’s benefit. The rule to be applied here, where appellant has delivered the car and has taken the benefit of his agent’s acts in making the sale, by taking its proceeds, is, that he cannot take the benefits of the act, without also taking the burdens resulting from the agent’s knowledge and intentions. Curtis Collins & Holbrook Co. v. United States, 262 U.S. 215, 43 S.Ct. 570, 67 L.Ed. 956; Morris v. Georgia Loan Co., 109 Ga. 12, 34 S.E. 378, 46 L.R.A. 506; Connecticut Fire Insurance Co. v. Commercial National Bank of San Antonio, 5 Cir., 87 F.2d 968. Under The undisputed facts in this case, there was no abuse of discretion in refusing the remission. Indeed, there was no discretion to do otherwise, for, with Yeager’s knowledge imputed to appellant, the case falls entirely outside of the minimum statutory conditions under which a court may exercise its discretion to grant or refuse mitigation or remission of forfeiture. The judgment is affirmed. The first resulted in a judgment of forfeiture — Beaudry v. United States, 5 Cir., 79 F.2d 650. The second" }, { "docid": "724228", "title": "", "text": "as ordered for trial on September 27, 1965. In reaching this result we reiterate that in this case notice was given of the hearing at which Babb failed to appear. We hold that when a court advances an appearance date so as to require the presence of a principal at a time before the day specified in the bond then notice similar to that given herein must be had before forfeiture may be ordered. Apparently the motion of appellant was intended to also include a request for partial remission. It has been held that the fact that the indictment was later dismissed, as was done in this case, is no grounds for remission. United States v. Nordenholz, 4 Cir., 95 F.2d 756. While justice does not require enforcement of the forfeiture if the breach is not wilful and the Government suffers no injury from the breach (Smaldone v. United States, supra; Dudley v. United States, 5 Cir., 242 F.2d 656; United States v. D’Argento, 7 Cir., 339 F.2d 925) there is no showing here that the breach was other than wilful. The affidavit of appellant says in part, “After my release I did travel extensively in order to clear up some of my affairs and was out of touch with both my attorney and my wife * * As to whether the Government suffered injury we are sure that the trial judge considered this when he remitted $2,000.00 on motion of the sureties. In Larson v. United States, 8 Cir., 296 F.2d 167, it was held that the action of the trial court denying remission may only be vacated on appeal where there has been an abuse of discretion. None has been demonstrated here. Affirmed." }, { "docid": "23430641", "title": "", "text": "automobile to the appellee. Appellant contends that the findings of the court implicit in its oral opinion, although not entered as findings of fact, are amply supported by the evidence, and that the court erred in concluding that it had discretion to remit the automobile because of the innocence of the owner and/or the hardship resulting from denying a remission. The appellee counters that the evidence was insuffi cient to support such findings and that they “cannot be considered the formal findings contemplated by (the) Rules to be the result of careful reflection, study, and consideration given the record in retrospect.” Moreover, appellee contends here, although it did not raise the point below, that the statute which requires the seizure of a vehicle without the knowledge or fault of its owner or lien-holder of the illegal use is unconstitutional. First, as to the proof of the basic fact that the automobile was used in violation of Section 781, (footnote 1 supra) with the correction in the record as to the date, which correction is to be taken as true in light of the trial court’s approval, the testimony not only authorized a finding by the court of the essential facts; it demanded such a finding. We have previously held in Associates Investment Co. v. United States, 5 Cir., 220 F.2d 885, that the smallness of the quantity of marihuana transported or concealed is not a basis for granting remission. Appellee does not contend that the statute permits remission merely because of the innocence of the owner and lienholder. However, since the trial court placed its judgment on this ground, we cite Associates Investment Co. v. United States, supra, United States v. One 1952 Model Ford Sedan Automobile, 5 Cir., 213 F.2d 252, certiorari denied, Greenville Ave. State Bank v. U. S., 348 U.S. 862, 75 S.Ct. 87, 99 L.Ed. 680, as authority for the position we take that such good faith or innocence is immaterial in a seizure under the narcotics statutes although this is not strictly true under illegal whiskey condemnations. There are many similar cases from other circuits." }, { "docid": "2032944", "title": "", "text": "where appellant has delivered the car and has taken the benefit of his agent’s acts in making the sale, by taking its proceeds, is, that he cannot take the benefits of the act, without also taking the burdens resulting from the agent’s knowledge and intentions. Curtis Collins & Holbrook Co. v. United States, 262 U.S. 215, 43 S.Ct. 570, 67 L.Ed. 956; Morris v. Georgia Loan Co., 109 Ga. 12, 34 S.E. 378, 46 L.R.A. 506; Connecticut Fire Insurance Co. v. Commercial National Bank of San Antonio, 5 Cir., 87 F.2d 968. Under The undisputed facts in this case, there was no abuse of discretion in refusing the remission. Indeed, there was no discretion to do otherwise, for, with Yeager’s knowledge imputed to appellant, the case falls entirely outside of the minimum statutory conditions under which a court may exercise its discretion to grant or refuse mitigation or remission of forfeiture. The judgment is affirmed. The first resulted in a judgment of forfeiture — Beaudry v. United States, 5 Cir., 79 F.2d 650. The second in a judgment sustaining Ms right to make claim for remission, 5 Cir., 92 F.2d 687." }, { "docid": "10854589", "title": "", "text": "no time had any knowledge or reason to believe that it was being or would be used in the violation of laws of the United States or of any átate relating to liquor; and (3) “if it appears that 'the interest asserted by the claimant arises out of or is-1 in any way 'subject to any contract of agreement under which any person having a record ór reputation for violating laws of’ the United States or of any State relating to liquor has a right with respect to such vehicle or 'aircraft that, before such- claimant acquired- his interest, or such other person- acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to: his-inquiry, at the headquarters- of the sheriff, chief of police, principal Federal internal-revenue officér engaged in the.enforcement of’the liquor laws, or other principal local or Federal law-enforcement officer of the locality in which such other person acquired his-right under such contract or agreement, of the locality in which such other person then resided, and of each locality in which the ¡claimant has made any other inquiry as to the character or financial standing of such other person,, that such other person-had no such record or reputation.” See United States v. One Hudson Coupe 1938 Model, 4 Cir., 110 F.2d 300. The burden is upon the claimant to prove that inquiry was made of any one of the enumerated officers, and failure to make such inquiry can be excused only if it is shown that the party who is the subject of the claimant’s interest had “no record or reputation” with any of such officers. United States v. One 1939 Model De Soto Coupe, 10 Cir., 119 F.2d 516; Kinston Auto Finance Co. v. United States, 4 Cir., 182 F.2d 543. Even in the face of technical or minimum compliance with the requirements'of-Section 3617(b), supra, the trial court is vested with sound discretion to allow or' refuse remission. United States v. One 1938 Model Chevrolet, 5 Cir., 106 F.2d 985; Beaudry v; United States, 5 Cir.," }, { "docid": "23294068", "title": "", "text": "DOBIE, Circuit Judge. A proceeding by the United States of America for the forfeiture of one Hudson Coupe, for violation of the internal revenue laws of the United States, 26 U.S.C.A. § 1441, 26 U.S.C.A. Int.Rev.Code, § 3321, was instituted in the United States District Court. Commercial Credit Company, claimant and appellee, (hereinafter called the claimant), filed an answer to the libel of information, asserting a lien upon the automobile, and seeking a remission or mitigation of the forfeiture. After a hearing without a jury upon oral testimony and affidavits, the District Judge ordered that the automobile be forfeited, but he. allowed the Credit Company’s claim and directed the return of the automobile to the claimant upon payment by it of the expenses incident to the seizure and forfeiture. From this judgment, the United States appeals. The Government denies that the District Court had authority to remit or mitigate the forfeiture under Section 204(b) of the Repeal Enforcement Act, 27 U.S.C.A. § 40a (b); but concedes that the claimant did satisfy two of the conditions precedent to remission, viz., (1) that claimant had an interest as lienor in the Hudson Coupe, which interest it had acquired on good faith, and (2) that claimant had at no time'prior to the seizure any knowledge or reason to believe that said automobile was being or would be used in violation of laws of the United States or of any state relating to liquor. But the Government strenuously insists that the claimant failed to comply with the third condition: (3) that claimant should have made proper inquiry of certain law enforcement officers, expressly designated in the statute, as to the buyer’s record or reputation for violating liquor laws. Claimant contends that as the buyer had no such record or reputation, and the District Court so found, there was no legal duty resting upon it to make this inquiry. The buyer of the Hudson Coupe, who was later apprehended in the unlawful removal of materials for distilled spirits, had purchased the automobile in 1938, and had given the dealer a promissory note secured by a" }, { "docid": "10427678", "title": "", "text": "Truck v. United States, 6 Cir., 140 F.2d 255; United States v. One Packard Roadster Automobile, D.C., 29 F.2d 424; General Motors Acceptance Corporation v. United States, 8 Cir., 32 F.2d 121. In the case of United States v. One Marmon Automobile, D.C., 5 F.2d 113, 115, the court said: “ * * * The specific intent to defraud may, however, be shown, and generally must be shown by circumstances. 12 Cyc. 152, 153, 179, 180. Where the natural and probable result of the acts intentionally done is to defraud, an intent to defraud is to be presumed; but the presumption may be rebutted by showing the actual absence of such intent.” In this connection the court below found as follows, “that said vehicle was engaged in the deposit, concealment and removal of distilled spirits within the meaning of Section 3450 of the Internal Revenue Law [Rev.St.].” The court below found as a conclusion of law that the said motor vehicle was engaged in the violation of the Internal Revenue Law and therefore forfeitable. We are unable to hold that this finding was clearly wrong. On the second question the Government contends that no proper petition for remission of the forfeiture was filed by the claimant but we are of the opinion that the answer of the claimant filed in the forfeiture suit could properly be treated as a petition for remission if the trial judge saw fit to do so. But even then the question of remitting the forfeiture as provided under Title 18, sec. 646, U.S.C.A., was one within the discretion of the trial judge who in this case refused to remit the forfeiture and we can find no grounds for holding that in so doing he abused his discretion. The Judge heard the witnesses ; was familiar with all the circumstances of the case and decided to enforce the forfeiture. Under the circumstances we cannot interfere with his judgment in the matter. The action of the court below is accordingly approved and the judgment is affirmed. Affirmed." }, { "docid": "10854590", "title": "", "text": "person then resided, and of each locality in which the ¡claimant has made any other inquiry as to the character or financial standing of such other person,, that such other person-had no such record or reputation.” See United States v. One Hudson Coupe 1938 Model, 4 Cir., 110 F.2d 300. The burden is upon the claimant to prove that inquiry was made of any one of the enumerated officers, and failure to make such inquiry can be excused only if it is shown that the party who is the subject of the claimant’s interest had “no record or reputation” with any of such officers. United States v. One 1939 Model De Soto Coupe, 10 Cir., 119 F.2d 516; Kinston Auto Finance Co. v. United States, 4 Cir., 182 F.2d 543. Even in the face of technical or minimum compliance with the requirements'of-Section 3617(b), supra, the trial court is vested with sound discretion to allow or' refuse remission. United States v. One 1938 Model Chevrolet, 5 Cir., 106 F.2d 985; Beaudry v; United States, 5 Cir., 106 F.2d 987; United States v. Automobile Financing, Inc., 5 Cir., 99 F.2d 498. See Annot. 124 A.L.R. 288, 305. The trial court denied remission, based upon a finding that Aetna, before acquiring its interest in the car, did not make the inquiries concerning the record or reputation of Razook as required by Section 3617(b) (3), supra. And, the evidence shows that at the time Aetna acquired its interest in the automobile, Razook had a record or reputation as a dealer in liquor in and around Wichita, Kansas. The sole question presented by this appeal is whether the trial court’s findings on the evidence are clearly erroneous. To. discharge the burden of proving compliance with Section 3617(b),-Aetna introduced evidence to the effect that in June 1949, a girl’ employed in its office at Wichita, Kansas, made the “usual routine check” on Razook by telephone to the register of deeds, polipe station, sheriff’s office and credit, bureau. The girl testified that she did not know the names of the persons she talked to at the police" }, { "docid": "15379162", "title": "", "text": "the District Court to deny the remission of forfeiture. A large part of its brief is devoted to maintaining that remission is not a matter of right, and that even though all statutory “conditions precedent to remission or mitigation” are complied with, whether there shall be a remission or mitigation is still within the sound discretion of the court. We understand this to be the law. We do not understand appellee to contend oth erwise. Certainly the District Judge so understood the law. In his opinion he said; “I think this is a clear case where the Court should exercise its discretion to remit the forfeiture.” The real controversy between appellant and appellee is over appellant’s contention; that in the case of sales of this kind, where the real purchaser with a record, procures another to appear as purchaser, the ostensible purchaser must be disregarded and the remission granted or denied upon the record and reputation of the real purchaser; and that where, as here, no inquiry was made regarding him, the statutory conditions precedent have not been complied with, and remission must be denied. The involved* language of (b)(3) is, we think, capable of such a possible construction. Several District Courts, and one Circuit Court of Appeals, the Eighth, have so construed it. We agree, however, with the view of the Fourth Circuit Court of Appeals that “Congress did not intend to impose upon the lienor the obligation to ascertain at his peril” the existence of secret or covered interests, “unless from the documents themselves or other surrounding circumstances the lienor possesses information which would lead a reasonably prudent and law-abiding person to make further investigation.” The long legislative and judicial history of the struggles of those engaged in a large and legitimate industry, automobile financing, to protect themselves and their industry from the ruinous consequences of wholesale forfeitures, unreasonable and unjust as to them from the standpoint of bona fides, and the committee reports accompanying the passage of the Remission Act, all conspire to support, as the construction intended for the Act, that in the absence of circumstances" }, { "docid": "15379161", "title": "", "text": "automobile.” The District Judge made findings fully supported by the record; that McFarland was the real purchaser and owner; that because of his own bad reputation as a liquor violator, he had procured Jenkins to appear as ostensible purchaser; tha't the Finance Company was, however, wholly unaware of this fact and prosecuted inquiries and purchased .the notes and lien in the good faith and reasonable belief that Jenkins was the purchaser; that Jenkins had a good reputation for character and for paying his debts, and that the Finance Company had a right to and did rely upon this record and reputation. He concluded that there was no duty or obligation upon the Company to investigate the record and reputation of McFarland, the real but secret purchaser of the car, and in the exercise of the discretion he thought the statute conferred on him, he ordered the forfeiture remitted. The United States is here insisting that, under the findings, the spirit and the purpose 'of the statute, as well as its literal terms, authorized, indeed required, the District Court to deny the remission of forfeiture. A large part of its brief is devoted to maintaining that remission is not a matter of right, and that even though all statutory “conditions precedent to remission or mitigation” are complied with, whether there shall be a remission or mitigation is still within the sound discretion of the court. We understand this to be the law. We do not understand appellee to contend oth erwise. Certainly the District Judge so understood the law. In his opinion he said; “I think this is a clear case where the Court should exercise its discretion to remit the forfeiture.” The real controversy between appellant and appellee is over appellant’s contention; that in the case of sales of this kind, where the real purchaser with a record, procures another to appear as purchaser, the ostensible purchaser must be disregarded and the remission granted or denied upon the record and reputation of the real purchaser; and that where, as here, no inquiry was made regarding him, the statutory conditions precedent" } ]

[ { "docid": "2059198", "title": "", "text": "as her assignee, can stand in no better position. Remember that the hospital could have protected itself by making more pointed inquiries of Ms. Jackson or some other Blue Cross employee. We observe, finally, that no evidence in this record supports the hospital’s contention that Ms. Jackson later realized her omission and failed to correct it. IV. The hospital’s remaining claims require little discussion. The evidence fails to show that Blue Cross administered the Plan in an arbitrary and capricious manner. Additionally, Blue Cross did not waive its right to apply the first premium retroactively. The evidence did not show that Blue Cross customarily allowed plan participants to defer their payments. Moreover, the regular practice under COBRA is to apply the initial premium retroactively to cover the participant from the date he would lose coverage. See 52 Fed.Reg. 22,731 (1987), proposed 26 C.F.R. § 1.162.26 at Q & A 47. The judgment of the District Court is affirmed. . The Hon. Warren K. Urbom, Senior United States District Judge for the District of Nebraska. . The hospital argues that this information was available to Ms. Jackson on the same computer screen which showed that Delores Phillips was currently covered. However, no evidence supports this claim. In addition, the hospital never asked this specific question when it called Blue Cross. . Although the hospital denies that this notice was ever received, the District Court held that there was no evidence to contradict the affidavit of Tom Broderick, a manager in the Accounts Receivable department of Blue Cross, which stated that this information was sent to Delores Phillips's home. We agree. Mrs. Phillips, of course, had become unable to receive mail, but there is no evidence that Blue Cross knew this. It was her guardian’s duty to receive her mail and act upon it if necessary. . The hospital argues that the time limit on a qualified beneficiary’s election should be extended because Mrs. Phillips became incapacitated during her election period, citing Sirkin v. Phillips Colleges, Inc., 779 F.Supp. 751 (D.N.J.1991). This case, along with Branch v. G. Bernd Co., 764 F.Supp." } ]

[ { "docid": "12560731", "title": "", "text": "under Unitel’s group health plan.. After plaintiffs coverage under Unitel’s health care plan ended, she incurred substantial medical bills. I. APPLICABLE COBRA PROVISIONS In 1986, Congress enacted COBRA to amend the Employee Retirement Income Security Act (“ERISA”) by providing for limited continuation coverage rights under employer-provided group health insurance plans. Swint v. Protective Life Ins. Co., 779 F.Supp. 532, 552 (S.D.Ala.1991). Congress found ERISA did not adequately ensure individuals would not be abruptly left without health care coverage; Therefore, COBRA is remedial legislation. National Companies Health Plan v. St. Joseph’s Hosp. Inc., 929 F.2d 1558, 1567 (11th Cir.1991). The legislative history of the COBRA amendments shows Congressional concern “with, reports of the growing number of Americans without any health insurance coverage and the decreasing willingness of our Nation’s hospitals to provide care to those who cannot afford to pay.” H.R.Rep. No. 241, Part 1, 99th Cong., 2d Sess. 44, reprinted in 1986 U.S.C.C.A.N. 579, 622. Congress designed COBRA to “allow a spouse or forfner spouse who has been a qualified beneficiary under a group plan to elect continuation coverage on his or her own behalf.” Id. “The administrator’s duties under COBRA are not onerous while the result of noncompliance could be disastrous for the discharged employee.” Phillips v. Riverside, Inc., 796 F.Supp. 403, 411 (E.D.Ark.1992). COBRA mandates; The plan sponsor of each group health plan shall provide ... that each qualified .beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan. 29 U.S.C. § 1161(a). COBRA requires the plan administrator to notify any qualified beneficiary of her. rights following a qualifying event. 29 U.S.C. § 1166(a)(4). COBRA defines a qualified beneficiary as any individual, who on the day before the qualifying event, is a beneficiary under the plan as the spouse of the covered employee. 29 U.S.C. § 1167(3). A qualifying event is an event that, but for the continuation coverage required under COBRA would result in the loss of coverage of the qualified beneficiary. 29 U.S.C. § 1163." }, { "docid": "12560730", "title": "", "text": "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ ” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original)). In the present case, the parties have filed cross motions for summary judgment. The material facts are not in dispute; therefore, summary judgment is proper. The following facts are not in dispute. From 1987 through 1989, Unitel employed plaintiffs spouse, Theodore Mlsna. During this time, Unitel’s group health plan, covered Eileen Mlsna as a dependent of her spouse. On January 23, 1989, Theodore' Mlsna submitted his resignation to Mr. Mallín, the president of Unitel. Either immediately or on January 25, 1989; Mr. Mallín relieved Theodore Mlsna of his duties. Following the termination of Theodore Mlsna’s employment, Unitel did not notify plaintiff of her right to elect continuation of health care coverage under Unitel’s group health plan.. After plaintiffs coverage under Unitel’s health care plan ended, she incurred substantial medical bills. I. APPLICABLE COBRA PROVISIONS In 1986, Congress enacted COBRA to amend the Employee Retirement Income Security Act (“ERISA”) by providing for limited continuation coverage rights under employer-provided group health insurance plans. Swint v. Protective Life Ins. Co., 779 F.Supp. 532, 552 (S.D.Ala.1991). Congress found ERISA did not adequately ensure individuals would not be abruptly left without health care coverage; Therefore, COBRA is remedial legislation. National Companies Health Plan v. St. Joseph’s Hosp. Inc., 929 F.2d 1558, 1567 (11th Cir.1991). The legislative history of the COBRA amendments shows Congressional concern “with, reports of the growing number of Americans without any health insurance coverage and the decreasing willingness of our Nation’s hospitals to provide care to those who cannot afford to pay.” H.R.Rep. No. 241, Part 1, 99th Cong., 2d Sess. 44, reprinted in 1986 U.S.C.C.A.N. 579, 622. Congress designed COBRA to “allow a spouse or forfner spouse who has been a qualified beneficiary under a group plan" }, { "docid": "14360443", "title": "", "text": "their favor. Since the COBRA cause of action does not affect plaintiff’s employer, there are no outstanding claims to discuss against Amtrak. II. COBRA Notice As mentioned above, plaintiff also complains that Travelers failed to send her information about her “COBRA” rights. COBRA was enacted in 1985 to provide employees who had been covered by an employment-related group health care plan with the opportunity to elect group rate continuation of coverage under the plan in the face of some “qualifying event”—job loss or hour reduction. 29 U.S.C. § 1161; Local 217, Hotel & Restaurant Employees Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992) (discussing COBRA purpose and requirements). COBRA amended ERISA to require health care sponsors to provide such coverage and to notify their covered employees of election rights under the Act. 29 U.S.C. § 1161; see also id. § 1166 (notice requirements). The notification requirements of COBRA are clear. In the event of a covered employee’s termination, an employer must notify the administrator of the group health care plan within thirty days, id. § 1166(a)(2); the administrator then has fourteen days to notify the qualified beneficiary of her right to continue coverage, and this period may be longer if the plan is a multiemployer group health care plan and it so provides. Id. § 1166(a)(4). An employer or plan administrator who sends proper notice to the covered employee’s last known address is deemed to be in good faith compliance with COBRA’S notification requirements. Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F.Supp. 77, 81-82 (D.D.C.1991); see also Conery v. Bath Associates, 803 F.Supp. 1388, 1398 (N.D.Ind.1992) (“Courts that have considered [how notice of eligibility must be communicated] have determined that a good faith attempt to comply with a reasonable interpretation of the provision is sufficient.”). A qualified COBRA beneficiary may elect continuation coverage within sixty days of the qualifying event or of notice of the qualifying event, whichever is later. Local 217, 976 F.2d at 809 (citing 29 U.S.C. § 1162(3)); Communications Workers of America v. NYNEX Corp., 898 F.2d 887, 888-889 (2d Cir.1990) (discussing COBRA); see" }, { "docid": "23586715", "title": "", "text": "provided by 29 U.S.C. § 1162(2)(C). Relying on the decision of the district court in the present case, the Sirkin court held that Sir-kin’s incapacity tolled the period for payment of the premium until the appointment of a legal guardian. The court considered it “inconceivable ... that a statutory scheme which is otherwise so generous and protective of employees enrolled in employment benefit plans would in this instance ignore both equity and reason by requiring employees suddenly incapacitated and physically unable to secure their benefits to forfeit so basic a need as health coverage.” Id. at 756. . As the district court noted, section 1165(1), which provides that the election period begins not later than the date of the qualifying event and ends not earlier than 60 days after the beneficiary receives notice of the right to elect continued coverage, creates a form of tolling that exhibits Congress’ intent to allow beneficiaries at least 60 days in which to make an informed decision. . The Department of Treasury has proposed the only regulations that relate to COBRA procedures. Q & A-34 provide: Question 34: During the election period and before the qualified beneficiary has made an election, must coverage be provided? Answer 34: (a) In general, each qualified beneficiary has until at least 60 days after the date that the qualifying event would cause him or her to lose coverage to decide whether to elect COBRA continuation coverage. If the election is made during that period, coverage must be provided from the date that coverage would otherwise have been lost.... .The regulations state: Question 37: Can each qualified beneficiary make an independent election under COBRA? Answer 37: Yes.... An election on behalf •of a qualified beneficiary who is incapacitated or dies can be made by the legal representative of the qualified beneficiary or the qualified beneficiary’s estate, as determined under applicable state law, or by the spouse of the qualified beneficiary." }, { "docid": "13036657", "title": "", "text": "group rate, which is of course lower than the rate for individual coverage. See Consolidated Omnibus Budget Reconciliation Act of 1986, Pub.L. No. 99-272, 100 Stat. 82, 227 (describing COBRA as a “temporary extension of coverage at group rates”). The “plan sponsor of each group health plan” must thus provide an opportunity to qualified beneficiaries who are covered under a group insurance plan and who will lose coverage as a result of a “qualifying event,” 29 U.S.C. § 1161(a) — e.g., “the termination ... of the covered employee’s employment,” 29 U.S.C. § 1163(2) — to elect “continuation coverage under the plan.” 29 U.S.C. § 1161(a). “Continuation coverage” is “coverage which, as of the time the coverage is being provided, is identical to the coverage provided under the plan.” 29 U.S.C. § 1162(1). Under Section 1162(3)(A) the coverage must be made available at no more than 102% of the group rate. Upon the happening of a qualifying event, such as layoffs, an employer must notify the plan administrator of the occurrence of that event. 29 U.S.C. § 1166. The administrator must then notify the qualified beneficiaries of their rights under COBRA within fourteen days of the date on which the administrator is notified. Id. The qualified beneficiary may elect continuation coverage within sixty days of the qualifying event or of notice of the qualifying event, whichever is later. 29 U.S.C. § 1165(1). Premiums are to be paid by the employee. 29 U.S.C. § 1162(3). The continuation coverage is for a maximum period of eighteen months but ends upon the employer’s ceasing to provide any group health plan. 29 U.S.C. § 1162(2)(B) and (C). See generally, Communications Workers of America v. NYNEX Corp., 898 F.2d 887 (2d Cir.1990) (discussing COBRA). The Magistrate Judge stated that MHM was both the “plan sponsor” and “employer” for purposes of COBRA. She also stated that when MHM notified BC/ BS, the plan administrator, of the layoffs pursuant to Section 1166(a)(2), MHM had complied with its obligations under COBRA. Local 217 argues, however, that no opportunity to elect continuation coverage was available in the instant matter for" }, { "docid": "13036658", "title": "", "text": "§ 1166. The administrator must then notify the qualified beneficiaries of their rights under COBRA within fourteen days of the date on which the administrator is notified. Id. The qualified beneficiary may elect continuation coverage within sixty days of the qualifying event or of notice of the qualifying event, whichever is later. 29 U.S.C. § 1165(1). Premiums are to be paid by the employee. 29 U.S.C. § 1162(3). The continuation coverage is for a maximum period of eighteen months but ends upon the employer’s ceasing to provide any group health plan. 29 U.S.C. § 1162(2)(B) and (C). See generally, Communications Workers of America v. NYNEX Corp., 898 F.2d 887 (2d Cir.1990) (discussing COBRA). The Magistrate Judge stated that MHM was both the “plan sponsor” and “employer” for purposes of COBRA. She also stated that when MHM notified BC/ BS, the plan administrator, of the layoffs pursuant to Section 1166(a)(2), MHM had complied with its obligations under COBRA. Local 217 argues, however, that no opportunity to elect continuation coverage was available in the instant matter for the sixty days as mandated by Section 1165(1) and that it is now entitled to an injunction requiring MHM to provide a sixty-day period during which the employees may obtain continuation coverage. We disagree. COBRA provides that, if an employer maintains a group health plan, the plan must provide continuation coverage for employees who would lose coverage because of a qualifying event. The employer or sponsor’s only further obligation under COBRA is to notify the administrator of the qualifying event, after which the administrator must give notice under COBRA to the particular beneficiaries of their right to continuation coverage. 29 U.S.C. § 1166. Of course, the plan administrator is contractually obligated to provide that coverage to the employees who select it and who pay the premium. However, an employer is under no obligation flowing from COBRA to adopt a group health plan or to maintain one that is in existence. Indeed, the collective bargaining agreement in the instant matter provided that group health benefits would cease within 90 days of the closing of the hotel," }, { "docid": "17104866", "title": "", "text": "first year of coverage. Therefore, although Mr. Conery was covered under the SLI plan, the coverage was incomplete. BTL contends that under the 1987 version of COBRA, the gap in the coverage under the SLI plan caused by the preexisting condition clause did not obligate BTL to provide Mr. Conery with insurance coverage after October 31, 1987.' In support of this contention, BTL points to Martin v. Prudential Insurance Co., 776 F.Supp. 1172 (S.D.Miss.1991), which held that the wife of an employee covered under COBRA was not entitled to COBRA coverage for her pre-existing condition after becoming covered under another employer’s plan, even though the new employer’s plan excluded pre-existing conditions from coverage. The Martin court noted that the 1989 amendments to COBRA expressly required that continuation coverage be provided in such instances, but found that this amendment came too late to assist the plaintiffs. BTL requests that the court follow the reasoning of Martin and find that any obligation to provide continuation coverage by BTL expired on October 31. The court declines this request. The Martin decision is contrary to the clear weight of authority. Circuit courts addressing the pre-1989 language of 29 U.S.C. § 1162(2)(D)(i) have interpreted the statute to entitle an employee to receive continuation coverage under the previous employer’s plan in cases where the employee becomes covered under a pre-existing group health plan if a significant gap in coverage exists between the two plans. See National Companies Health Benefit Plan v. St. Joseph’s Hosp., 929 F.2d 1558, 1571 (11th Cir.1991); Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir.1990); Oakley v. Longmont, 890 F.2d 1128 (10th Cir.1989) (interpreting identical language in Public Health Service Act). The language, in the cited appellate decisions constitute dicta, . but the court finds the reasoning behind that language to be persuasive. As the Eleventh Circuit noted in National Companies, 929 F.2d 1558, an employee is entitled to continuation coverage when such a gap in coverage exists because: [I]n that.situation, the employee is not truly “covered” by the preexisting group health plan, as that term is used by Congress to effectuate" }, { "docid": "23586691", "title": "", "text": "REAVLEY, Senior Circuit Judge: H. Lynn Branch, administrator of the estate of Dwayne Elijah Bell, brought this suit to recover health insurance benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461, and the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C. §§ 1161-1168. Pan American Life Insurance Co. (PALIC) appeals from the district court’s judgment holding PALIC liable for the costs of treating the injuries that led to Bell’s death. See Branch v. G. Bernd Co., 764 F.Supp. 1527 (M.D.Ga.1991). As alternative grounds for its decision, the district court held that: (1) an administrator of an employee health plan who provides a beneficiary with an inaccurate summary of that plan may not enforce the plan’s terms that are inconsistent with those of the summary regardless of whether the beneficiary proves reliance on the summary, and (2) the period during which COBRA allows a beneficiary to elect to continue coverage under a health plan is tolled by the beneficiary’s incapacitation during that election period. Id. at 1540. We affirm, based on the court’s second ground. I. BACKGROUND As an employee of the G. Bernd Co. (G. Bernd), Bell received insurance coverage under G. Bernd’s Employee Welfare Benefit Plan (the Plan). PALIC issued an insurance policy that provided health and hospitalization coverage under the Plan during the time period relevant to this case. As required by COBRA, the Plan offered G. Bernd’s employees the option of continuing their health coverage at their own expense for eighteen months after termination of their employment. On March 15, 1989, Bell telephoned G. Bernd’s administrative assistant, Jane Pratt, to announce that he was resigning because of G. Bernd’s new drug testing policy, and to arrange to get his last pay check. During this conversation, Pratt advised Bell of his COBRA right to elect continued health insurance coverage. Later that day, Bell went to Pratt’s office, and she again informed him of his COBRA right and offered him an election form. Bell refused to complete the form and left the office after Pratt told him that his check would not be" }, { "docid": "11422788", "title": "", "text": "within the definition of 29 U.S.C. section 1002(40), since it is a plan that provides health care benefits to the employees of two or more employers and was not established pursuant to any collective bargaining agreement. As such, under the proposed regulation, plaintiffs employer would be considered as maintaining a separate plan. Since plaintiffs employer admittedly only had twelve employees in the year preceding the termination and refusal to continue plaintiffs coverage, under the proposed regulation, the plan pursuant to which plaintiff received her benefits was not required to provide her with continuation coverage under the COBRA provisions. See 29 U.S.C. sec. 1161; 52 Fed.Reg. at 22721-22 (Q & A 9-10). The question for the court is whether it must defer to the interpretation contained in the proposed Treasury regulation. First, the court must determine whether the proposed Treasury regulation is applicable to the substantive ERISA question, i.e., whether it is the administrative interpretation of an agency charged with enforcement of a statutory scheme. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Second, the court must determine whether the agency’s construction of the statute is reasonable. Id. “[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. The answer to the first question is that the Treasury regulation does represent the interpretation of an administrative agency charged with enforcement. The excise tax provision contained in the tax code is one method of enforcing the substantive obligation to provide continuation coverage. The language in the excise tax provision defining the obligation to provide continuation coverage, 26 U.S.C. section 4980B(f)~ (g), parallels the language of the substantive ERISA COBRA provisions. 29 U.S.C. secs. 1161(a), 1162-1167. Further, the language exempting certain plans from the application of the excise tax provision, 26 U.S.C. section 4980B(d)(l), parallels the language of the exception contained in the substantive ERISA COBRA provision. 29 U.S.C. sec. 1161(b). Under section 4980B(d), no tax shall apply to a failure of a plan to provide continuation coverage if “all employers maintaining such plan normally employed fewer" }, { "docid": "14360444", "title": "", "text": "id. § 1166(a)(2); the administrator then has fourteen days to notify the qualified beneficiary of her right to continue coverage, and this period may be longer if the plan is a multiemployer group health care plan and it so provides. Id. § 1166(a)(4). An employer or plan administrator who sends proper notice to the covered employee’s last known address is deemed to be in good faith compliance with COBRA’S notification requirements. Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F.Supp. 77, 81-82 (D.D.C.1991); see also Conery v. Bath Associates, 803 F.Supp. 1388, 1398 (N.D.Ind.1992) (“Courts that have considered [how notice of eligibility must be communicated] have determined that a good faith attempt to comply with a reasonable interpretation of the provision is sufficient.”). A qualified COBRA beneficiary may elect continuation coverage within sixty days of the qualifying event or of notice of the qualifying event, whichever is later. Local 217, 976 F.2d at 809 (citing 29 U.S.C. § 1162(3)); Communications Workers of America v. NYNEX Corp., 898 F.2d 887, 888-889 (2d Cir.1990) (discussing COBRA); see also Gaskell v. Harvard Coop. Soc., 762 F.Supp. 1539, 1541 (D.Mass.1991) (“Unless and until such notice is given to the employee, the continuation period cannot begin to run.”). Continued coverage extends for a maximum period of eighteen months, 29 U.S.C. § 1162(2)(A). Travelers asserts that it sent plaintiff a package containing information pertaining to COBRA, including a Notice of Qualifying Event form, on September 28, 1989. (Letter from Travelers to Hubicki, June 28, 1992, Exh. C to Amtrak’s 3(g) Statement) The insurance company supports this assertion by providing documentation — in the form of a “Cobradex Employee Record” for plaintiff— attached to this memorandum and as Exhibit B to the Yolner Affidavit; this record is maintained by Travelers in the ordinary course of its business. (Volner Aff. ¶ 8) Plaintiff confirms receipt of notice by attaching as Exhibits A & B two documents that she says she received without any explanation: a Medicare handbook and a document which appears to me to be the requisite COBRA notification. While plaintiff states that this second document “does" }, { "docid": "22906356", "title": "", "text": "plan coverage.” Id. § 1162(2)(D). Originally, as noted supra p. 1562, this provision stated that an employer could terminate continuation coverage on the date on which the qualified beneficiary first became, “after the date of election[,] ... a covered employee under any other group health plan.” COBRA, Pub.L. No. 99-272, § 10,002(a), 100 Stat. 82, 228. Then, in October 1986, Congress amended this section to allow termination of continuation coverage when the qualified beneficiary first became, “after the date of election, covered under any other group health plan (as an employee or otherwise).” Tax Reform Act, Pub.L. No. 99-514, § 1895(d)(4)(B)(ii), 100 Stat. 2085, 2938. Finally, Congress amended this section in 1989 to provide that an employer may terminate continuation coverage when the qualified beneficiary first becomes covered as an employee or otherwise by a group health plan “which does not contain any exclusion or limitation with respect to any prexisting condition of such beneficiary.” Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7862(c)(3)(B)(ii), 103 Stat. 2106, 2432. The active provision at the time Mr. Hersh resigned from NDC was that found in the October 1986 version of ERISA. The specific question before us is whether Mr. Hersh’s coverage, prior to and after his resignation from NDC, under Mrs. Hersh’s group health plan allowed National to terminate his continuation coverage immediately; in other words, does the existence of the preexisting group health coverage make Mr. Hersh effectively ineligible for continuation coverage under ERISA? We hold that it does. Two circuit courts of appeals have considered this basic question. In Oakley v. City of Longmont, 890 F.2d 1128 (10th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990), the Tenth Circuit analyzed COBRA’s amendments to the Public Health Service Act (PHSA), 42 U.S.C. §§ 201 to 300aaa-13 (1988), ERISA’s statutory counterpart governing group health plans for certain state and local employees; the language at issue in Oakley is identical to that at issue in this case. The plaintiff, Oakley, was a fire fighter for the City of Longmont, and was covered under both his employer’s" }, { "docid": "11422783", "title": "", "text": "basis for the court’s ruling was that the Reserve Insured Trust for Employers (“RITE”), through which Assured’s employees received their benefits, was an Alabama multiple employer trust to which the master group insurance policies were issued and delivered. The court reserved its decision as to whether defendant Midland has complied with all of its obligations under ERISA pending further briefing that had been ordered by the court at the hearing on March 25, 1991. The only question remaining for decision in this case is whether defendant Midland is liable to plaintiff for continuation coverage under ERISA. Specifically, as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub.L. No. 99-272, sec. 10002(a), 100 Stat. 227 (1986) (codified as amended at 29 U.S.C. sections 1161-1168) (“COBRA”), Congress required ERISA plan sponsors to provide terminated employees and or their dependents with the option of purchasing continuation health coverage without regard to insurability. In the present case, the issue for decision is whether the plan under which plaintiff received benefits is exempt from the obligation to provide continuation coverage. DISCUSSION Under the COBRA provisions of ERISA: Plans must provide continuation coverage to certain individuals (a) In general The plan sponsor of each group health plan shall provide, in accordance with this part, that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan. (b) Exception for certain plans Subsection (a) of this section shall not apply to any group health plan for any calendar year if all employers maintaining such plan normally employed fewer than 20 employees on a typical business day during the preceding calendar year. 29 U.S.C. sec. 1161. The question presented here is whether the plan at issue is within the exception set forth in section 1161(b). Defendant, relying on a proposed Treasury regulation, 52 Fed.Reg. 22716, 22721-22 (1987), argues that it was not obligated to provide plaintiff with continuation coverage because her employer, defendant Assured, only had twelve employees in the calendar year preceding the" }, { "docid": "23586713", "title": "", "text": "reliance because the summaries in those cases misrepresented the plans’ terms while G. Bernd’s summary omitted the plan’s 60-day election period. Branch bases this argument on the district court’s finding that, despite the fact that G. Bernd’s summary expressly allowed the employee 31 days in which to elect continued coverage, it actually \"set[ ] out no specific election period.” See Branch, 764 F.Supp. at 1531 (emphasis added). We assume that the district court believed that a 31-day period, which is not \"at least 60 days” as required by section 1165(1)(B), is not an \"election period” under COBRA. Branch contends that we should not require reliance on a summary that omits or fails to provide information because such an omission can never inspire reliance and denies the beneficiary of information necessary to make a decision. But a beneficiary who receives a summary that omits the plan’s limit on the election period could prove reliance with evidence that the beneficiary received and read the summary and failed to make a timely election based on the belief that there was no time limit. It is thus irrelevant in this case whether the summary misrepresented or omitted the election period. . The only decision other than that of the district court in this case that we have found even related to this issue is Sirkin v. Phillips Colleges, Inc., 779 F.Supp. 751 (D.N.J.1991). In Sirkin, the district court of New Jersey held that, \"where an insured misses a premium deadline under COBRA due to the insured's incapacity to know of or meet her obligation, the deadline for that premium payment is tolled for a reasonable period of time until the insured or her legally appointed guardian is able to cure the deficiency.” Id. at 758. Sirkin timely elected to continue health coverage under her employer’s plan after leaving her job, and sent a check toward payment of the premium. Prior to the date on which the next payment was due, Sirkin was hospitalized and became mentally incapacitated. After Sirkin’s second premium payment was more than 30 days late, Phillips Colleges terminated Sirkin's coverage as" }, { "docid": "11422791", "title": "", "text": "issue regulations concerning employers’ substantive obligations under ERISA. Specifically, the House Conference Report concerning the COBRA continuation coverage provisions indicates that Congress intended there to be a division of administrative oversight between the Departments of the Treasury, Labor, and Health and Human Services. H.Conf.Rep. No. 99-453, 99th Cong., 1st Sess., at 562-63 (rejected by the House, Dec. 19,1985). The Treasury Department was to be responsible for coverage and related tax issues while the Department of Labor was to be responsible for promulgating appropriate disclosure and reporting regulations. Id, In fact, the conference report refers to “the Treasury regulations defining a plan” in discussing cost issues associated with continuation coverage. Id. at 563. While the Conference report was rejected by the House, see 131 Cong.Rec. 38359, 38367 (Dec. 19, 1985), the portions of the conference report discussing the COBRA provisions at issue here would appear to express the view of Congress since the continuation coverage provisions were enacted without change from the version submitted in the conference report. Compare Pub.L. No. 99-272, secs. 10001-10002, 100 Stat. 222-32 with H.Conf.Rep. No. 99-453, at 162-72 (text of H.R. 3128, secs. 10001-10002, submitted in the conference report). Specifically, it would appear that Congress intended the division of labor between administrative arms of the executive department reflected in the conference report. See H.Conf.Rep. No. 99-453, at 562-63. The legislative history, therefore, reinforces the court’s conclusion that the Department of the Treasury is an administrative agency charged with enforcement and implementation of at least this portion of ERISA. Hence, the court must defer to its interpretation of the phrase contained in both the excise tax and substantive ERISA provision if it is reasonable. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. The interpretation set forth in the proposed regulation is a reasonable one. The provisions at issue speak of “all employers maintaining such plan.” 26 U.S.C. sec. 4980B(d)(l); 29 U.S.C. sec. 1161(b). The proposed regulation simply treats each employer in a MEWA as maintaining a separate plan. 52 Fed.Reg. at 22722 (Q & A 10(d)). Thus, such an employer is treated as if it" }, { "docid": "23586714", "title": "", "text": "there was no time limit. It is thus irrelevant in this case whether the summary misrepresented or omitted the election period. . The only decision other than that of the district court in this case that we have found even related to this issue is Sirkin v. Phillips Colleges, Inc., 779 F.Supp. 751 (D.N.J.1991). In Sirkin, the district court of New Jersey held that, \"where an insured misses a premium deadline under COBRA due to the insured's incapacity to know of or meet her obligation, the deadline for that premium payment is tolled for a reasonable period of time until the insured or her legally appointed guardian is able to cure the deficiency.” Id. at 758. Sirkin timely elected to continue health coverage under her employer’s plan after leaving her job, and sent a check toward payment of the premium. Prior to the date on which the next payment was due, Sirkin was hospitalized and became mentally incapacitated. After Sirkin’s second premium payment was more than 30 days late, Phillips Colleges terminated Sirkin's coverage as provided by 29 U.S.C. § 1162(2)(C). Relying on the decision of the district court in the present case, the Sirkin court held that Sir-kin’s incapacity tolled the period for payment of the premium until the appointment of a legal guardian. The court considered it “inconceivable ... that a statutory scheme which is otherwise so generous and protective of employees enrolled in employment benefit plans would in this instance ignore both equity and reason by requiring employees suddenly incapacitated and physically unable to secure their benefits to forfeit so basic a need as health coverage.” Id. at 756. . As the district court noted, section 1165(1), which provides that the election period begins not later than the date of the qualifying event and ends not earlier than 60 days after the beneficiary receives notice of the right to elect continued coverage, creates a form of tolling that exhibits Congress’ intent to allow beneficiaries at least 60 days in which to make an informed decision. . The Department of Treasury has proposed the only regulations that relate" }, { "docid": "17104868", "title": "", "text": "its intent; the employee, despite his other coverage, will be liable personally for substantial medical expenses to his and his family’s detriment. Denying continuation coverage in that setting would serve to frustrate, rather than foster, Congress’ clear intentions. Although Mr. Conery obtained coverage under the SLI plan on October 31, he did not become “covered” as that word is used in the statute for his substantial diabetes-related expenses. SLI had no obligation to provide coverage for his pre-existing condition; absent continuation coverage, Mr. Conery would incur the type of medical expense Congress sought to avoid through COBRA. BTL argues that because the 1989 amendment to COBRA specifically provides for continuation coverage when an employer becomes covered under another plan with a pre-existing conditions clause, the prior version of the statute, by implication, did not require coverage to continue once the employee became covered under another plan regardless of any gaps in coverage. Other than the Martin case, BTL cites no authority for the proposition that the 1989 amendment changed the law. The 1989 amendment did not change the law; it merely clarified Congress’ original intent. The amendment further emphasized Congress’ concerns that group health plan participants and their, dependents not be placed in a situation in which they suffer a gap in the character of coverage as the result of a qualifying event such as termination of employment. Brock v. Primedica, 904 F.2d at 297; H.R.Rep. No. 101-247, 101st Cong., 1st Sess. 1452-1453, reprinted in 1989 U.S.C.C.A.N. 1906, 2922-23. Therefore, the court concludes that any obligation of Bath and/or BTL to provide continuation coverage for Mr. Conery’s diabetes-related expenses did not terminate on October 31, 1987. 5. Claims of Sean and Kelly . Conery BTL contends that the claims of Sean and Kelly Conery should be dismissed since they did not incur any medical bills during the time period relevant to the suit. The court agrees that their claims against BTL should be dismissed. As noted above, the Conerys’ claims against BTL are premised on a failure to provide COBRA benefits, not on a failure to provide notice of COBRA" }, { "docid": "11422797", "title": "", "text": "the substantive liability for such coverage would not normally be determined until after the qualifying event occurred, such an employer would probably not have any way of insuring against that eventuality. The legislative history seems to indicate that Congress did not intend such a result. Thus, since the interpretation contained in the proposed Treasury regulation is reasonable, the court must defer to that interpretation. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82; see Kidder v. H & B Marine, Inc., 734 F.Supp. at 729 (relying on the proposed Treasury regulations); Krogh v. Chamberlain, 708 F.Supp. 1235 (D.Utah 1989) (same). CONCLUSION Based on the foregoing, the court finds that the proposed Treasury regulation con cerning the obligation of small employers to provide continuation coverage is a reasonable interpretation of an administrative agency charged with enforcement and implementation of the COBRA continuation coverage provisions. Thus, the court must defer to its construction of the statutory exception which treats each employer in a MEWA as maintaining a separate plan such that the plan to which an employer contributes on behalf of its employees is not obligated to provide continuation coverage if the employer normally employs fewer .than 20 employees. Since plaintiffs employer only had twelve employees on a typical business day during the calendar year preceding the year in which plaintiffs benefits were terminated and she was refused continuation coverage, the plan sponsor was not obligated to offer plaintiff the opportunity to purchase continuation coverage without regard to insurability. Thus, defendant Midland has satisfied all of its obligations to the plaintiff and is entitled to summary judgment. Therefore, the court hereby GRANTS defendant Midland’s motion for summary judgment as to the remaining COBRA continuation coverage issue. IT IS SO ORDERED. . Specifically, under subsequently repealed 26 U.S.C. section 162(i)(2)(A), no deduction would be \"allowed under this section for expenses paid or incurred by an employer for any group health plan unless all such plans maintained by such employer\" provided continuation coverage. Pub.L. No. 99-272, sec. 10001(a), 100 Stat. 222 (1986). However, in subsequently repealed section 162(i)(2)(B), Congress provided that \"[s]ub-paragraph (A) shall" }, { "docid": "19842401", "title": "", "text": "ERISA’s continuation coverage provisions to provide that the right to such continuation coverage ends on the date the employee becomes covered under another group health plan “which does not contain any exclusion or limitation with respect to any preexisting condition.” 29 U.S.C. § 1162(2)(D)(i) (emphasis added). The House Report accompanying the legislation explained that the amendment was: intended to carry out the purpose of the health care continuation rules, which was to reduce the extent to which certain events, such as the loss of one’s job, could create a significant gap in health coverage. Such a gap in coverage occurs when the new employer group health coverage excludes or limits coverage for a preexisting condition that is covered by the continuation coverage. H.R.Rep. No. 247, 101st Cong., 1st Sess. 1453 (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 2923 (emphasis added). The Fifth Circuit construed the new statute in Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir.1990), and held that a voluntarily terminated employee who had dual coverage under her husband’s health plan was not entitled to continue her benefits under COBRA, as long as she did not suffer a gap in the character of her coverage as the result of her termination. That Circuit based its holding both on the legislative history of the statute at issue, and on dicta in the Oakley opinion expressing concern about the gap in coverage experienced by that plaintiff. Id. at 297. The provision at issue was next construed by the Eleventh Circuit in National Cos. Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, Inc., 929 F.2d 1558 (11th Cir.1991). That Circuit joined the Fifth Circuit in holding that coverage under a preexisting group health plan terminated the plaintiffs former employer’s obligation to provide continuation coverage. It rejected the Tenth Circuit’s emphasis on the “becomes, after the date of election” language in the statute, and held that the true issue the Court should address was whether Congress’ purpose — employee group health coverage — had been served. Thus, under the Eleventh Circuit’s reasoning: it is immaterial when the employee obtains other group coverage;" }, { "docid": "11422786", "title": "", "text": "U.S.C. secs. 106(b), 162(i)(2), (k)(l) (repealed and replaced by Pub.L. No. 100-647, sec. 3011(a)-(b)(3), 102 Stat. 3616-25 (1988) (codified as amended at 26 U.S.C. sec. 4980B)) and codified as amended at 29 U.S.C. sec. 1161-1168). Thus, the COBRA provisions are within the administrative jurisdiction of both the Treasury and Labor Departments. See 26 U.S.C. secs. 7801, 7805 (providing Secretary of the Treasury with authority to “prescribe all needful rules and regulations for the enforcement of this title”); 29 U.S.C. sec. 1168 (authorizing the Secretary of Labor to prescribe regulations to carry out the COBRA continuation coverage provisions). While the Secretary of Labor has not issued any regulations regarding the COBRA provisions, the Office of Employee Plans and Exempt Organizations, an office within the Internal Revenue Service which is part of the Department of the Treasury, has issued proposed Treasury regulations interpreting the COBRA provisions. 52 Fed.Reg. 22716 (1987). The proposed regulations, in the form of a preamble and 24 Questions and Answers (“Q & A”), with subparts and illustrations, attempt to answer questions which might arise under the COBRA provisions. While some of the Q & A’s have been obviated by Congress’ replacement of the deductibility provisions with the excise tax, many of the Q & A’s remain relevant to determinations to be made under extant provisions of the tax code. Specifically, the scope of the exception to the requirement that plans provide continuation coverage remains an issue under the excise tax provision as well as under the substantive ERISA provisions. The proposed regulations interpret the phrase “all employers maintaining such plan,” which is contained in both 29 U.S.C. section 1161(b) and 26 U.S.C. section 4980B(d). Under Q & A 10(d), “[a]n arrangement that constitutes a multiple employer welfare arrangement as defined in section 3(40) of [ERISA, 29 U.S.C. section 1002(40),] is considered a separate group health plan with respect to each employer maintaining the arrangement.” 22 Fed.Reg. at 22722. In the present case, the evidence submitted in support of defendant Midland’s motion for summary judgment, filed February 19, 1991, establishes that RITE is a multiple employer welfare arrangement (“MEWA”)" }, { "docid": "23586708", "title": "", "text": "for at least the period- beginning on the date of the qualifying event.” Id. § 1162(2) (emphasis added). Thus, the beneficiary’s coverage relates back to the date of the qualifying event, regardless of when during the election period the election is made. See also 52 Fed.Reg. 22,716, 22,729, Q & A-34. We agree with the district court’s determination that coverage continues from the date of the qualifying event even if the beneficiary .makes an election after incurring medical expenses during the election period. Congress assured beneficiaries at least 60 days in which to elect to continue coverage from the date of the qualifying event because this furthers its goal of reducing the number of Uninsured Americans. Nowhere does COBRA provide that an intervening need for medical care will prevent the extension of coverage from relating back to the time of the qualifying event. Thus, a beneficiary like Bell who loses coverage because of a qualifying event may adopt a wait-and-see approach to continued coverage, and then elect coverage if and when medical care is required during the election period. But a problem arises when, as here, the need for care results in incapacitation, rendering the beneficiary unable to make an election and thereby depriving the beneficiary of what remains of the election period. By applying tolling principles in such a case, we solve this problem in a manner that effectuates Congress’ intent. COBRA is silent on the question of whether the administrator of the estate of a beneficiary who dies during the election period may make an election on the beneficiary’s behalf. The Treasury Department has addressed this question and proposed regulations that allow the beneficiary’s legal representative to make the election for the beneficiary. Id. at 22,730, Q & A-37. We find that these regulations represent the proper construction of COBRA in light of Congress’ intent. In the easy case, the beneficiary dies or is incapacitated and the representative is appointed within the election period. But when the representative is not appointed until after the election period expires, the resulting time gap deprives the beneficiary of the opportunity to" } ]

[ { "docid": "23411741", "title": "", "text": "a craft by model number cannot sue for the manufacturer’s negligence because he got precisely what he ordered.” Id. These examples do not square with an interpretation of the Boyle defense that contemplates approval without evaluation. In both cases the government has no interest in the defective design feature because the contractor, not the government, exercised discretion over the design choice. If discretion is unimportant to approval, if the government may approve by rubber stamp, then the government ought to be able to approve the design by accepting and using the air conditioning unit or by ordering and accepting delivery of the helicopters. Boyle clearly indicates that such “approval” would be insufficient. Decisions in the circuit courts prior to Boyle also support our holding. The Third Circuit flatly held that the government’s approval must consist of “more than a mere rubber stamp.” In re Aircrash Disaster, 769 F.2d at 122. The Third Circuit held that the government’s approval of a design satisfies the first element of the government contractor defense if it comes “after a substantive review of the specifications.” Id. at 123. The case of Shaw v. Grumman Aerospace Corp., 593 F.Supp. 1066 (S.D.Fla.1984), aff'd, 778 F.2d 736 (11th Cir.1985), cert. denied, — U.S. -, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988), presents almost exactly the same relationship between the United States Navy and a military contractor as we find in the present case. Shaw concerned defects in the design of the Navy’s A-6 aircraft. The district court found that the Navy provided general performance, mission and criteria specifications to Grumman, that Grumman exclusively designed the aircraft and submitted the detailed specifications to the Navy, that the Grumman drawings were routinely examined and approved by Navy personnel, that the Navy did not evaluate the design data or check the accuracy or compliance of the drawings, that Grumman in fact had final control of the design of the aircraft, that Grumman decided to use a defectively-designed stabilizer system on the aircraft, and that the Navy was not aware of the design defect at the time of approval. Id., 593 F.Supp." } ]

[ { "docid": "18487666", "title": "", "text": "v. McDonnell Douglas Corp., 890 F.2d 698, 704 (4th Cir.1989) (emphasis added). As additional support for these propositions, Appellants point to the fact that the overwhelming majority of cases decided after Boyle involved a product either procured or used for military purposes. See Stout v. Borg-Warner Corp., 933 F.2d 331, 332 (5th Cir.1991) (Army hawk Missile System Mobile Repair Unit); In re Joint Eastern & Southern Dist. New York Asbestos Litig., 897 F.2d 626 (2d Cir.1990) (asbestos installed in Naval vessels); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 68 (3d Cir.1990) (Army National Guard helicopter); Skyline Air Service, Inc. v. G.L. Capps Co., 916 F.2d 977, 978 (5th Cir.1990) (Army helicopter); Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 243 (5th Cir.1990) (defective mortar shells supplied to Marine Corps); Kleemann v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989) (Naval F/A-18 aircraft); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989) (VIPER weapon simulator); Garner v. Santoro, 865 F.2d 629 (5th Cir.1989) (epoxy paint applied to Naval vessels); Trevino v. General Dynamics Corp., 865 F.2d 1474, 1475 (5th Cir.1989) (submarine); Monks v. General Elec. Co., 919 F.2d 1189, 1190 (6th Cir.1990) (Army helicopter); United States v. Lindberg Corp., 882 F.2d 1158 (7th Cir.1989) (tank gears); Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1313 (11th Cir.1989) (Air Force F—16); In re Aircraft Litig., 752 F.Supp. 1326, 1330 (S.D. Ohio 1990) (Air Force EC-135N jet aircraft); Maguire v. Hughes Aircraft Corp., 725 F.Supp. 821, 822 (D.N.J.1989) (Army National Guard helicopter); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019, 1021 (S.D.Ill.1989) (asbestos-containing products in Air Force T-29, C-131, C-54, and C—118); Nicholson v. United Technologies Corp., 697 F.Supp. 598, 599 (D.Conn.1988) (Army helicopter): Schwindt v. Cessna Aircraft Co., 1988 WL 148433 (S.D.Ga.1988) (Air Force O-Z aircraft); Zinck v. ITT Corp., 690 F.Supp. 1331 (S.D.N.Y.1988) (night vision goggles used in Marine Corps helicopter). Finally, Appellants contend that numerous courts have recently reaffirmed the reasoning in Boyle, and held that the government contractor defense was to be strictly limited to cases involving military equipment or products used for military purposes. See In" }, { "docid": "18487665", "title": "", "text": "487 U.S. at 512, 108 S.Ct. at 2518 (emphasis added). Moreover, the Court held that: It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production. In sum, we are of the view that state law which holds Government contractors liable for design defects in military equipment does in some circumstances (when the three criteria cited above are met) present a “significant conflict” with federal policy and must be displaced. Id. at 512, 108 S.Ct. at 2518 (emphasis added). Furthermore, Appellants argue that although Boyle altered the scope of the government contractor defense, the policy underlying the defense remains “rooted in considerations peculiar to the military.” Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 1450, 1455 (9th Cir.1990). The salient purpose behind the government contractor defense is to “encourage active communication between suppliers of military equipment and military authorities in the development and testing of equipment.” Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 704 (4th Cir.1989) (emphasis added). As additional support for these propositions, Appellants point to the fact that the overwhelming majority of cases decided after Boyle involved a product either procured or used for military purposes. See Stout v. Borg-Warner Corp., 933 F.2d 331, 332 (5th Cir.1991) (Army hawk Missile System Mobile Repair Unit); In re Joint Eastern & Southern Dist. New York Asbestos Litig., 897 F.2d 626 (2d Cir.1990) (asbestos installed in Naval vessels); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 68 (3d Cir.1990) (Army National Guard helicopter); Skyline Air Service, Inc. v. G.L. Capps Co., 916 F.2d 977, 978 (5th Cir.1990) (Army helicopter); Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 243 (5th Cir.1990) (defective mortar shells supplied to Marine Corps); Kleemann v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989) (Naval F/A-18 aircraft); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989) (VIPER weapon simulator); Garner v. Santoro, 865 F.2d 629 (5th Cir.1989) (epoxy paint applied to Naval vessels); Trevino v. General Dynamics Corp.," }, { "docid": "3788684", "title": "", "text": "a manufacturing defect. For example, if the Government were not warned about the dangers in the use of the defective equipment, and the contractor knew of the dangers, then the government contractor defense does not apply. Boyle, 108 S.Ct. at 2518. . See, e.g., Boyle, 108 S.Ct. 2510 (1988) (military helicopter); Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990) (F-16A fighter aircraft); Bynum v. FMC Corp., 770 F.2d 556 (5th Cir.1985) (cargo carrier). . The United States Army prepared the military specifications for the load, assemble and pack operation of the mortar shell in question. Based on these specifications, the Army Safety Division of the United States Government approved the Standard Operating Procedure for the proper assembly of 81mm shells. In addition, the Government approved the inspection plan for the manufacture of the shells. Norris Industries claims that it asked the Government to authorize the alteration of the inspection plan from a sampling procedure to a 100% magne particle inspection process, but the Government did not respond to the request. . Because of the potential of the government contractor defense to displace large chunks of the states’ traditional prerogative over tort law, the defense must be applied with caution. \"Displacement will occur only where ... a 'significant conflict’ exists between an identifiable 'federal policy or interest and the [operation] of state law,’ ... or the application of state law would ‘frustrate specific objectives’ of federal legislation ...” Boyle, 108 S.Ct. at 2515. Already, this Court has declined to extend the government contractor defense to a situation in which there was no uniquely federal interest. See Trevino v. General Dynamics Corp., 865 F.2d 1474, 1486 (5th Cir.) (concluding that a \"mere rubber stamp” by a federal procurement officer does not constitute government approval sufficient for application of the government contractor defense), cert. denied, — U.S.-, 110 S.Ct. 327, 107 L.Ed.2d 317 (1989). Likewise, this Court declines to extend the defense unnecessarily in this case. . Day & Zimmermann and Norris Industries argue that the case of Harduvel v." }, { "docid": "18487673", "title": "", "text": "892 F.2d at 1454-55; see also Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 704 (4th Cir.1989) (“the very purpose of the government contractor defense is to encourage active communication between suppliers of military equipment and military authorities in the development and testing of equipment”); Garner v. Santoro, 865 F.2d 629, 634-36 (5th Cir.1989) (recognizing the principle that the policy behind the defense is rooted in considerations peculiar to the military); Trevino v. General Dynamics Corp., 865 F.2d 1474, 1483-84 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 327, 107 L.Ed.2d 317 (1989) (same); Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1315-16 (11th Cir.1989) (“in the sensitive area of federal military procurement ... the balance [of safety concerns against cost and performance] is not one for state tort law to strike. Although the defense may sometimes seem harsh in its operation, it is a necessary consequence of the incompatibility of modern products liability law and the exigencies of national defense”). The Court also agrees with the Nielsen court’s decision rejecting the military contractor defense as a bar to an action brought by a former employee of the Army Corps of Engineers against a paint manufacturer. In Nielsen, the plaintiff alleged that fumes from a paint he had used extensively while working for the Corps had caused him brain damage. Noting that the paint “was not designed for any special military purpose,” id. at 1453, but rather was “designed to further civilian ... objectives,” id. at 1455, the court affirmed the view expressed in McKay, that the military contractor defense does not apply to “an ordinary consumer product purchased by the armed forces.” McKay, 704 F.2d at 451. These conclusions are in accord with other post-Boyle decisions involving the procurement of nonmilitary equipment. See In re Hawaii Federal Asbestos Cases, 715 F.Supp. 298 (D.Hawaii 1988), aff'd, 960 F.2d 806 (9th Cir.1992); Reynolds v. Penn Metal Fabricators, Inc., 146 Misc.2d 414, 550 N.Y.S.2d 811 (1990); Pietz v. Orthopedic Equipment Co., 562 So.2d 152, 155 (Ala.1989) cert. denied, — U.S. -, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990); Weitzman v. Eagle-Picher" }, { "docid": "3889738", "title": "", "text": "held, either in the context of a motion for summary judgment, see, e.g., Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988), or in the context of a judgment notwithstanding the verdict, see e.g., Boyle, 487 U.S. at 514, 108 S.Ct. at 2519; Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990). Although Boyle itself involved claims brought on behalf of a military serviceman, the defense also applies to claims brought against military contractors by or on behalf of civilians. Boyle, 487 U.S. at 510-11, 108 S.Ct. at 2517-18 (dicta); Garner v. Santoro, 865 F.2d 629 (5th Cir.1989); Ramey v. Martin Baker Aircraft Co Ltd., 874 F.2d 946 (4th Cir.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). Boyle holds that the government contractor defense is applicable to claims based upon design defects, 487 U.S. at 512, 108 S.Ct. at 2518, and most cases following Boyle have involved strict liability and/or negligence claims arising from design defects. See, e.g., Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990); Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). The Boyle defense has been applied to claims of breach of warranty in tort arising from design defects. Ramey, 874 F.2d at 948. See also Crossan v. Electron Tube Division of Litton Systems, Inc., 693 F.Supp. 528, 529 (E.D.Mich.1986) (government contractor defense applies to strict liability," }, { "docid": "18487667", "title": "", "text": "865 F.2d 1474, 1475 (5th Cir.1989) (submarine); Monks v. General Elec. Co., 919 F.2d 1189, 1190 (6th Cir.1990) (Army helicopter); United States v. Lindberg Corp., 882 F.2d 1158 (7th Cir.1989) (tank gears); Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1313 (11th Cir.1989) (Air Force F—16); In re Aircraft Litig., 752 F.Supp. 1326, 1330 (S.D. Ohio 1990) (Air Force EC-135N jet aircraft); Maguire v. Hughes Aircraft Corp., 725 F.Supp. 821, 822 (D.N.J.1989) (Army National Guard helicopter); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019, 1021 (S.D.Ill.1989) (asbestos-containing products in Air Force T-29, C-131, C-54, and C—118); Nicholson v. United Technologies Corp., 697 F.Supp. 598, 599 (D.Conn.1988) (Army helicopter): Schwindt v. Cessna Aircraft Co., 1988 WL 148433 (S.D.Ga.1988) (Air Force O-Z aircraft); Zinck v. ITT Corp., 690 F.Supp. 1331 (S.D.N.Y.1988) (night vision goggles used in Marine Corps helicopter). Finally, Appellants contend that numerous courts have recently reaffirmed the reasoning in Boyle, and held that the government contractor defense was to be strictly limited to cases involving military equipment or products used for military purposes. See In re Hawaii Fed. Asbestos Cases, 960 F.2d 806 (9th Cir.1992); Nielsen v. George Diamond Vogel Paint Co., 892 F.2d at 1455; Reynolds v. Penn Metal Fabricators, Inc., 146 Misc.2d 414, 550 N.Y.S.2d 811 (1990); Weitzman v. Eagle-Picher Indus., 144 Misc.2d 42, 542 N.Y.S.2d 118, 121 (1989). For the following reasons, the Court agrees with Appellants and finds that the government contractor defense is to be limited to the military context. The analysis of Boyle was directed toward deciding the extent to which federal law should displace state law with respect to the liability of a military contractor. As the Appellees argue, the underlying premise in Boyle does apply to all government contracts, and is not limited to the military context. See Nielsen v. George Diamond Vogel Paint Co., 892 F.2d at 1454. That premise is that there is a “uniquely federal interest” in potential liabilities arising out of the performance of any government contract, regardless of its military or civilian nature, and regardless of whether it is a procurement or a construction contract. Id. (citing" }, { "docid": "14768754", "title": "", "text": "See, e.g., Tate v. Boeing Helicopters, 55 F.3d 1150, 1156 (6th Cir.1995) (affirming grant of summary judgment for design defect claim); In re Aircraft Crash Litigation Frederick, Md., May 6, 1981, 752 F.Supp. 1326, 1336 (S.D.Ohio 1990), aff'd sub nom. Darling v. Boeing Co., 935 F.2d 269, 1991 WL 105753 (6th Cir.1991) (“There is no doubt that the Boyle defense can be established as a matter of law. Cases following Boyle have so held ... in the context of a motion for summary judgment....”). D. Applying the Boyle Test Plaintiff only contests the second condition of the Boyle test: conformance to specifications; accordingly, I will focus on that condition, but I will briefly touch upon the other two requirements. First, to show that the government approved reasonably precise specifications, defendants need not prove that the government itself formulated the specifications, but they must prove that the government did more than merely give a “rubber stamp” to defendants’ own specifications. See Tate, 55 F.3d at 1154; Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480-81 (5th Cir.1989), cert. denied, 493 U.S. 935, 110 S.Ct. 327, 107 L.Ed.2d 317 (1989). The Boyle test’s first condition is satisfied, however, “where the government and the contractor engage in a ‘continuous back and forth’ review process regarding the design in question.” Tate, 55 F.3d at 1154 (quoting Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990)). In this case, defendants, through affidavits of Sikorsky officials and a former senior engineer for the Army, produce evidence of an extensive ‘continuous back and forth’ review process between Sikorsky and the Army, Navy, and Coast Guard before the government gave final approval to the design for the helicopters at issue. (See Crawford Aff., Schlenk Aff., Potts Aff., Thach Aff., Brisbois Aff.) Plaintiff produces no evidence to the contrary. I find that defendants have established the first element of the government contractor defense. While apparently conceding that the government approved reasonably precise specifications for the helicopter and tip cap at issue, plaintiff vigorously contests defendants’" }, { "docid": "3889737", "title": "", "text": "government of all design defects. Id. (citing Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 746 (1985). In this Court’s view, Boyle means that the defense applies where the “discretionary function” exception to the FTC A would prevent liability on the part of the federal government in the area of military procurement. Thus, where the government exercises its discretion with regard to the design of a particular piece of equipment (instead of simply ordering it from stock), discretion expressed through “engineering analysis” and the exercise of judgment regarding technical and military factors, and trade-offs between safety and mission effectiveness, see Boyle, 487 U.S. at 500, 108 S.Ct. at 2510, and where the three Boyle elements are satisfied, a military contractor is entitled to immunity from suit under state tort law. If state law would impose liability where the three Boyle elements are met, the requisite “significant conflict” is present, and state law is preempted. There is no doubt that the Boyle defense can be established as a matter of law. Cases following Boyle have so held, either in the context of a motion for summary judgment, see, e.g., Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988), or in the context of a judgment notwithstanding the verdict, see e.g., Boyle, 487 U.S. at 514, 108 S.Ct. at 2519; Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990). Although Boyle itself involved claims brought on behalf of a military serviceman, the defense also applies to claims brought against military contractors by or on behalf of civilians. Boyle, 487 U.S. at 510-11, 108 S.Ct. at 2517-18 (dicta); Garner v. Santoro, 865 F.2d 629 (5th Cir.1989); Ramey v. Martin Baker Aircraft Co Ltd., 874 F.2d 946 (4th Cir.1989); Nicholson v." }, { "docid": "16913253", "title": "", "text": "the U.S. Air Force, maintained at the Douglas Plant a resident representative office, including a staff of engineers and procurement specialists. This group was directly responsible for the day to day supervision of the design and manufacture of the C-54 and C-118 aircraft and served as the liaison between government aircraft engineers at Wright Field and Douglas engineers and manufacturing managers. Douglas Affidavit at Paragraph 17. Furthermore, government engineers and inspectors frequently would visit the facilities throughout the manufacturing process. Douglas Affidavit at Paragraph 16. The aircraft in issue, underwent a final review at Wright Field before the purchase by the government. Douglas Affidavit at Paragraph 15. This review and approval of the C-54 and the C-118 encompassed a review and approval of the engine cowling assemblies, including the asbestos chafing strips. Id. Plaintiff has failed to present the court with controverting affidavits, or other documentation, as prescribed by Rule 56 of the Federal Rules of Civil Procedure to create a genuine issue of material fact with respect to the government approval of the C-54 and C-118 aircraft. McDonnell Douglas has demonstrated that the Air Force developed, participated and approved these aircraft throughout the course of the procurement, design and purchase of them. Such activity on the part of the Air Force with respect to these aircraft establishes that the Air Force approval of reasonably precise specifications, and thus the first element of the Boyle test has been satisfied by McDonnell Douglas. Ramey v. Martin-Baker Aircraft Corporation, 874 F.2d 946 (4th Cir.1989); Smith v. Xerox, 866 F.2d at 138; Trevino, 865 F.2d at 1479-81; Tillett, 756 F.2d at 598; Nicholson, 697 F.Supp. at 604; Zinck, 690 F.Supp. at 1336. Plaintiff argues that, in spite of the affidavits, declarations and documentary evidence, the defendants have failed to produce evidence demonstrating the exercise of discretionary judgment in the use of the asbestos-containing components. This allegation is neither supported by controverting evidence, nor is it an accurate assessment of the first prong of the Boyle test. The discretionary judgment involved in reaching the Boyle defense is the procurement of military equipment. Both defendants" }, { "docid": "16913251", "title": "", "text": "(5th Cir.1989). Tillett v. J.I. Case Company, 756 F.2d 591, 599 (7th Cir.1985); Nicholson, 697 F.Supp. at 604; Zinck v. ITT Corp., 690 F.Supp. 1331, 1336 (S.D.N.Y.1988). DEFENDANT McDONNELL DOUGLAS With respect to the first element of the government contractor defense, McDonnell Douglas points out that the use of asbestos in military aircraft designs was commonly approved by the United States Government. Federal specification SS-C-466, approved in 1949, is a government specification for asbestos sheet and tape. Affidavit of Donald W. Douglas, Jr. and Exhibit 5 attached thereto, to McDonnell Douglas’ Memorandum. Exhibit 6 to the Douglas affidavit reveals that this specification was in effect until 1955 when it was superseded by SS-C-466a, which governed the quality requirements for asbestos cloth, thread and cloth procured by the federal government. Furthermore, Exhibit 3 to the Douglas affidavit, the handbook of instructions for airplane designers, reveals that asbestos was considered an extremely valuable heat resistant material, particularly in engine and cowling areas. As such, many different military aircraft, including the C-54 and the C-118, repeatedly used asbestos as a heat resistant material, in accordance with Government Specification Mil-G-7021. Douglas Affidavit, Exhibit 9 and 10 thereto. The use of specific components of the aircraft, i.e., the use of asbestos chafing strips on the C-54 and C-118 aircraft, is called for on drawings for the aircraft. Government review and approval of all the design drawings was required before the contractor could commence production of military aircraft. Details of chafing strip design and materials were among the drawings which were required to be submitted for approval. Douglas Affidavit at Paragraph 10 and Exhibit 14 thereto. The government’s express approval of the asbestos parts in the design of the cowling assembly is evidenced by the signatures of the Army Air Forces and Navy Procurement officials in the Army and Navy approval blocks of engineering drawing No. 5074617. Douglas Affidavit and Exhibit 17 thereto; Exhibit B, Affidavit of Larry L. Fogg and Exhibits 3 and 4 thereto. The government reviewed and approved the aircraft design at several stages prior to acceptance. The Army Air Forces, and, subsequently," }, { "docid": "3889739", "title": "", "text": "United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). Boyle holds that the government contractor defense is applicable to claims based upon design defects, 487 U.S. at 512, 108 S.Ct. at 2518, and most cases following Boyle have involved strict liability and/or negligence claims arising from design defects. See, e.g., Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990); Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). The Boyle defense has been applied to claims of breach of warranty in tort arising from design defects. Ramey, 874 F.2d at 948. See also Crossan v. Electron Tube Division of Litton Systems, Inc., 693 F.Supp. 528, 529 (E.D.Mich.1986) (government contractor defense applies to strict liability, negligence and breach of warranty claims) (citing Tozer v. LTV Corp., 792 F.2d 403 (4th Cir.1986) and applying the McKay formulation of the elements of the defense). Several courts had held that the defense may be applied to failure to warn claims. See, e.g., In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626, 629 (2d Cir.1989); Dorse v. Eagle-Picher Industries, Inc., 898 F.2d 1487 (11th Cir.1990); Garner, 865 F.2d at 635; Niemann, 721 F.Supp. at 1024-25; Nicholson, 697 F.Supp. at 604 (claims arising out of alleged omissions in landing gear service manuals). Plaintiffs allege that all three Defendants herein were negligent in failing to conduct certain tests of the airplane and its autopilot. See Plaintiffs’ Liability Contentions, Doc. # 31, at 12-15; Plaintiffs’ Mem orandum, Doc. # 219, at 21-34, 56. In one sense, such claims are clearly related to Plaintiffs’ general negligent design claims, since the flight testing of the KC-135a, the C-135A and the EC-135N was an integral part of the process culminating in the ultimate configuration of" }, { "docid": "3889740", "title": "", "text": "negligence and breach of warranty claims) (citing Tozer v. LTV Corp., 792 F.2d 403 (4th Cir.1986) and applying the McKay formulation of the elements of the defense). Several courts had held that the defense may be applied to failure to warn claims. See, e.g., In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626, 629 (2d Cir.1989); Dorse v. Eagle-Picher Industries, Inc., 898 F.2d 1487 (11th Cir.1990); Garner, 865 F.2d at 635; Niemann, 721 F.Supp. at 1024-25; Nicholson, 697 F.Supp. at 604 (claims arising out of alleged omissions in landing gear service manuals). Plaintiffs allege that all three Defendants herein were negligent in failing to conduct certain tests of the airplane and its autopilot. See Plaintiffs’ Liability Contentions, Doc. # 31, at 12-15; Plaintiffs’ Mem orandum, Doc. # 219, at 21-34, 56. In one sense, such claims are clearly related to Plaintiffs’ general negligent design claims, since the flight testing of the KC-135a, the C-135A and the EC-135N was an integral part of the process culminating in the ultimate configuration of the accident aircraft. On the other hand, Plaintiffs’ negligence-in flight-testing claims can be viewed as setting forth a tort theory arguably separate from their negligent design claims. Therefore, the Court briefly addresses the applicability of Boyle, a design defects case, to Plaintiffs’ flight testing claims. The Court is unaware of any case applying Boyle to claims of negligence in testing a product pursuant to a government contract, and the parties have cited none to the Court. Where, as here, the testing of an aircraft produced pursuant to government contract is itself governed by that contract, the rationale of Boyle dictates that the defense be available to claims arising from alleged omissions in the testing process. Thus, if a military contractor were to be held liable for what is in effect a defect in the “Government-ordered design,” Boyle, 487 U.S. at 512, 108 S.Ct. at 2518, of the testing program associated with a product designed under government contract, such liability would be as subversive of the Government’s relationship with its contractors, and of the Government immunity" }, { "docid": "13904823", "title": "", "text": "and a mere “rubber stamp.” Lewis v. Babcock Indus., Inc., 985 F.2d 83, 87 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 3041, 125 L.Ed.2d 727 (1993); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir.1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950 (4th Cir.1989); Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 327, 107 L.Ed.2d 317 (1989); see also In re Aircraft Crash Litig. Frederick, Md., 752 F.Supp. 1326, 1338 (S.D. Ohio 1990), aff'd by unpubl. op. sub nom., Darling v. Boeing Co., No. 90-3902, 1991 WL 105753, 1991 U.S.App. LEXIS 13093 (6th Cir. June 18, 1991). As these cases recognize, the Court in Boyle established the government contractor defense in order to protect the government’s FTCA exemption from suits in which the United States exercises discretion in selecting a military equipment design. 487 U.S. at 511, 108 S.Ct. at 2518. The government exercises no discretion when it simply approves a design with a rubber stamp, that is, approves a design without scrutiny. “When the government merely accepts, without any substantive review or evaluation, decisions made by a government contractor, then the contractor, not the government, is exercising discretion.” Trevino, 865 F.2d at 1480. In a rubber stamp context, imposing state tort liability for a design defect does not frustrate the FTCA exemption protecting the government’s “judgment that a particular feature of military equipment is necessary,” Boyle, 487 U.S. at 512, 108 S.Ct. at 2518, because the government made no judgment as to the particular feature. No federal interest “significantly conflicts” with state law, and thus displacement of state law is unwarranted. It has been held that Boyle’s first condition is satisfied where the government and the contractor engage in a “ ‘continuous back and forth’ ” review process regarding the design in question. Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989) (quoting Koutsoubos v. Boeing Vertol, 755 F.2d 352, 355 (3d Cir.), cert. denied, 474 U.S. 821, 106 S.Ct. 72, 88 L.Ed.2d 59 (1985)), cert. denied, 494 U.S. 1030, 110" }, { "docid": "11549227", "title": "", "text": "Corp., 933 F.2d 331 (5th Cir.1991), this Court enumerated some of the constituents of “reasonably precise specifications” and government approval of those specifications for the purposes of satisfying the first element of the government contractor immunity defense. We held that the government contractor immunity defense is available where “review [of the project] involved, inter aha, [the contractor’s] submission of detañed drawings at variohs progressive stages of the design, critical design reviews where Army engineers’ critiqued [the contractor’s] work, and, finally, the production of prototype models tested and evaluated for months by the Army for its actual performance.” Stout, 933 F.2d at 336. See Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (1989) (if government engages in meaningful review of design the first element of Boyle test is established); see also Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 701 (4th Cir.1989) (“It is this salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense.”); Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989) (requirement that government approve reasonably precise specifications is met where contractor incorporated design that government subsequently reviewed and approved). In this case, the Air Force’s substantive review, evaluation and testing of the C-5A clearly implicates the Government’s discretionary function and approval of reasonably precise specifications. The defendants included with their motion for summary judgment unrebutted affidavits declaring that Lockheed, General Electric and the Air Force worked closely together on the development of the C-5A from its planning stages to its full production. In addition, the Air Force, through its personnel, inspected and supervised every aspect of the production of the C-5A. Clearly, the approvals in this case go far beyond mere rubber stamping. See Trevino, 865 F.2d at 1480 (“When the government merely accepts, without any substantive review or evaluation, decisions made by a government contractor, then the contractor, not the government, is exercising discretion”). In this case, the Government did not leave “the critical design decisions to the private contractor,” but worked closely with the defendants every step of the way. Trevino, 865 F.2d" }, { "docid": "16913250", "title": "", "text": "General Dynamics’ Memorandum. The purpose of this mock-up board was to review the design specification package and the prototype, direct changes to the design and ultimately approve the design package. Id. As demonstrated by Exhibit 16, a drawing used for the T-29 and C-131 aircraft, the drawing specifically references the use of asbestos and it further shows that certain aircraft components were made from “fabric 1-16 Neopren impregnated asbestos without wire 40 and wide 95 Johns-Manville.” That material explicitly references the Air Force specification entitled Mil-C-7637, Attachment 1 to defendants’ supplemental memorandum. The plaintiff has presented nothing to controvert the declarations and documents referred to in the declarations to demonstrate an issue of material fact with respect to this element of the Boyle test. The declarations and documents overwhelmingly prove that there existed reasonably precise specifications for the aircraft and that the Air Force approved these specifications. Ramey v. Martin-Baker Aircraft Corp., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox, 866 F.2d 135, 138 (5th Cir.1989); Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir.1989). Tillett v. J.I. Case Company, 756 F.2d 591, 599 (7th Cir.1985); Nicholson, 697 F.Supp. at 604; Zinck v. ITT Corp., 690 F.Supp. 1331, 1336 (S.D.N.Y.1988). DEFENDANT McDONNELL DOUGLAS With respect to the first element of the government contractor defense, McDonnell Douglas points out that the use of asbestos in military aircraft designs was commonly approved by the United States Government. Federal specification SS-C-466, approved in 1949, is a government specification for asbestos sheet and tape. Affidavit of Donald W. Douglas, Jr. and Exhibit 5 attached thereto, to McDonnell Douglas’ Memorandum. Exhibit 6 to the Douglas affidavit reveals that this specification was in effect until 1955 when it was superseded by SS-C-466a, which governed the quality requirements for asbestos cloth, thread and cloth procured by the federal government. Furthermore, Exhibit 3 to the Douglas affidavit, the handbook of instructions for airplane designers, reveals that asbestos was considered an extremely valuable heat resistant material, particularly in engine and cowling areas. As such, many different military aircraft, including the C-54 and the C-118, repeatedly used asbestos" }, { "docid": "18162892", "title": "", "text": "motion in favor of McDonnell Douglas on November 23, 1988. Maguire has not appealed from this order. In February of 1989, based upon the report of one of Maguire’s experts who concluded that a defectively designed engine ball bearing caused Maguire’s helicopter to crash, Allison filed a third party complaint against MPB Corporation (MPB), the designer and manufacturer of the ball bearing. In April of 1989, Maguire moved to add MPB as a direct defendant. This motion was later granted, and Maguire filed an amended complaint. In May of 1989, Allison filed a motion for summary judgment based upon the government contractor defense that the Supreme Court announced in Boyle. Shortly thereafter, MPB filed its own motion for summary judgment also based upon the same defense. In a reported opinion, see Maguire v. Hughes Aircraft Corp., 725 F.Supp. 821 (D.N.J.1989), the district court held that the government contractor defense precluded Maguire’s suit against Allison and MPB. As a result, on November 8, 1989, the district court entered an order granting summary judgment in favor of both defendants. Maguire filed a timely notice of appeal to this Court on December 5, 1989. II. We have appellate jurisdiction over the final order of the district court pursuant to 28 U.S.C.A. § 1291 (West Supp.1990). Since this appeal is taken from a grant of summary judgment, our scope of review is plenary. See International Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990). We apply the test provided in Federal Rule of Civil Procedure 56(c): (1) is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law? III. Prior to the Supreme Court’s opinion in Boyle, this Court looked to state law in diversity actions to decide whether it was appropriate to apply the government contractor defense in favor of a military contractor. For example, in Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d Cir.1982), we had to decide whether the government contractor defense barred an injured Army reservist from recovering for injuries that allegedly resulted from an improperly" }, { "docid": "11549226", "title": "", "text": "conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Id at 512, [108 S.Ct. at 2518], The Court explained that government contractor immunity is derived from the Government’s immunity from suit where the performance of a discretionary function is at issue. Id at 511,108 S.Ct. at 2518 (citing the Federal Tort Claims Act, 28 U.S.C. § 2680(a)). The Court concluded that “the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function.” Id at 511,108 S.Ct. at 2518. The first two elements of the test ensure ' that the Government, and not the contractor, is exercising discretion in selecting the design. The third element is necessary to eliminate any incentive that this defense may create for contractors to withhold knowledge of risks. Id., at 512, 108 S.Ct. at 2518. 1. The Air Force Approved Reasonably Precise Specifications In Stout v. Borg-Warner Corp., 933 F.2d 331 (5th Cir.1991), this Court enumerated some of the constituents of “reasonably precise specifications” and government approval of those specifications for the purposes of satisfying the first element of the government contractor immunity defense. We held that the government contractor immunity defense is available where “review [of the project] involved, inter aha, [the contractor’s] submission of detañed drawings at variohs progressive stages of the design, critical design reviews where Army engineers’ critiqued [the contractor’s] work, and, finally, the production of prototype models tested and evaluated for months by the Army for its actual performance.” Stout, 933 F.2d at 336. See Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (1989) (if government engages in meaningful review of design the first element of Boyle test is established); see also Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 701 (4th Cir.1989) (“It is this salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense.”); Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989)" }, { "docid": "16913249", "title": "", "text": "defendant General Dynamics’ Memorandum points out, in the late 1940’s and early 1950’s the Air Force had already established detailed generic standards and specifications which controlled the manufacture of asbestos-containing parts for use in military aircraft. (See Attachment No. 1 to General Dynamics’ Post-Hearing Supplemental Filing to General Dynamics Corporation’s Motion for Summary Judgment, MILITARY SPECIFICATIONS Mil-C-7637 entitled “Cloth, Coated, Asbestos” dated March 30, 1953.) It is clear from the Memorandum, Declarations and documents attached thereto that the Air Force was specifically involved in the preparation and approval of the proposed specifications and drawings for the T-29 and C-131 aircraft. The concept of the aircraft originated with the Air Force, and the Air Force was closely involved in the preparation of the design specifications. (Declaration of William C. Keller, Exhibit 2 to General Dynamics’ Memorandum; Declaration of General Gabriel Disosway, Exhibit 1 to General Dynamics’ Memorandum.) A formal Air Force review by the Air Force Mock-Up Board of the proto-type T-29 and C-131 aircraft and their specifications was performed. Exhibits 1, 2 and 3 of General Dynamics’ Memorandum. The purpose of this mock-up board was to review the design specification package and the prototype, direct changes to the design and ultimately approve the design package. Id. As demonstrated by Exhibit 16, a drawing used for the T-29 and C-131 aircraft, the drawing specifically references the use of asbestos and it further shows that certain aircraft components were made from “fabric 1-16 Neopren impregnated asbestos without wire 40 and wide 95 Johns-Manville.” That material explicitly references the Air Force specification entitled Mil-C-7637, Attachment 1 to defendants’ supplemental memorandum. The plaintiff has presented nothing to controvert the declarations and documents referred to in the declarations to demonstrate an issue of material fact with respect to this element of the Boyle test. The declarations and documents overwhelmingly prove that there existed reasonably precise specifications for the aircraft and that the Air Force approved these specifications. Ramey v. Martin-Baker Aircraft Corp., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox, 866 F.2d 135, 138 (5th Cir.1989); Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480" }, { "docid": "16913254", "title": "", "text": "and C-118 aircraft. McDonnell Douglas has demonstrated that the Air Force developed, participated and approved these aircraft throughout the course of the procurement, design and purchase of them. Such activity on the part of the Air Force with respect to these aircraft establishes that the Air Force approval of reasonably precise specifications, and thus the first element of the Boyle test has been satisfied by McDonnell Douglas. Ramey v. Martin-Baker Aircraft Corporation, 874 F.2d 946 (4th Cir.1989); Smith v. Xerox, 866 F.2d at 138; Trevino, 865 F.2d at 1479-81; Tillett, 756 F.2d at 598; Nicholson, 697 F.Supp. at 604; Zinck, 690 F.Supp. at 1336. Plaintiff argues that, in spite of the affidavits, declarations and documentary evidence, the defendants have failed to produce evidence demonstrating the exercise of discretionary judgment in the use of the asbestos-containing components. This allegation is neither supported by controverting evidence, nor is it an accurate assessment of the first prong of the Boyle test. The discretionary judgment involved in reaching the Boyle defense is the procurement of military equipment. Both defendants have demonstrated that the government exercised this discretion in the negotiations for the aircraft. The first prong of the Boyle test, therefore, requires that the government approve the reasonably precise specifications for the aircraft, and not, as plaintiff argues, for each individual component of the aircraft. Boyle, 108 S.Ct. at 2517-18; See Exhibits to Defendants’ Memorandum in Support of Motions for Summary Judgment. The evidence before the court clearly demonstrates that there is no genuine issue as to material fact that the defendants have satisfied the first requirement of the Boyle test, i.e., that United States, vis-a-vis the U.S. Air Force, or its predecessors, approved reasonably precise specifications for the T-29, C-131, C-54, and C-118 aircraft designs. CONFORMING EQUIPMENT Turning next to the second prong of the tripartite Boyle test, the defendants must show that the equipment conformed to the reasonably precise specifications which were approved by the United States. Although the plaintiff argues that “prong 2 of the Boyle test disallows the defense where it is determined the product does not conform to the" }, { "docid": "3788683", "title": "", "text": "of government requirements a product is designed not as defective, but nonetheless as dangerous, and could not serve its intended purpose if it were \"safe” in the sense that a consumer-oriented product would be expected to be safe. . See Comment, Government Contract Defense: Sharing the Protective Cloak of Sovereign Immunity After McKay v. Rockwell International Corp., 37 Baylor L.Rev. 181, 191-92 (1985) (\"A final reason recognized by the courts for permit ting the government contractor to share in the government’s immunity from suit is the inherent unfairness of subjecting an innocent manufacturer to enormous liability when the blame, if any, properly lies elsewhere.”); Comment, The Government Contractor Defense After Boyle v. United Technologies Corp., 41 Baylor L.Rev. 291, 299 (1989) (\"The government contract defense is founded on the theory that if a contractor manufactures a product according to government specifications, then fairness to the contractor demands that it be allowed to share in the government’s privilege of immunity.’’). .In some cases, the government contractor would be liable for a design defect, as well as a manufacturing defect. For example, if the Government were not warned about the dangers in the use of the defective equipment, and the contractor knew of the dangers, then the government contractor defense does not apply. Boyle, 108 S.Ct. at 2518. . See, e.g., Boyle, 108 S.Ct. 2510 (1988) (military helicopter); Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990) (F-16A fighter aircraft); Bynum v. FMC Corp., 770 F.2d 556 (5th Cir.1985) (cargo carrier). . The United States Army prepared the military specifications for the load, assemble and pack operation of the mortar shell in question. Based on these specifications, the Army Safety Division of the United States Government approved the Standard Operating Procedure for the proper assembly of 81mm shells. In addition, the Government approved the inspection plan for the manufacture of the shells. Norris Industries claims that it asked the Government to authorize the alteration of the inspection plan from a sampling procedure to a 100% magne particle inspection process, but" } ]

[ { "docid": "21531215", "title": "", "text": "positions. As members of the COSTEP, CORD or Associates programs, plaintiffs received various benefits such as financial assistance in completing the fourth year of medical school (COSTEP), deferment from the Selective Service (CORD), and investigative and experimental research opportunities (Associates). In 1974, P.L. 93-274 was enacted into law, amending title 37, United States Code, by adding §313. Section 313 authorized the Secretaries of the Department of Defense (DOD) and Health, Education and Welfare (HEW) to grant variable incentive pay, in limited circumstances, to both military and PHS physicians. Section 313, as then pertinent, provided as follows: §313. Special pay: medical officers who execute active duty agreements. (a) Under regulations prescribed by the Secretary of Defense or by the Secretary of Health, Education, and Welfare, as appropriate, and approved by the President, an officer of the Army or Navy in the Medical Corps, an officer of the Air Force who is designated as a medical officer, or a medical officer of the Public Health Service, who— (1) is below the pay grade of 0-7; (2) is designated as being qualified in a critical specialty by the Secretary concerned; (3) is determined by a board composed of officers in the medical profession under criteria prescribed by the Secretary concerned to be qualified to enter into an active duty agreement for a specified number of years; (4) is not serving an initial active duty obligation of four years or less or is not serving the first four years of an initial active duty obligation of more than four years; (5) is not undergoing intern or initial residency training; and (6) executes a written active duty agreement under which he will receive incentive pay for completing a specified number of years of continuous active duty subsequent to executing such an agreement; may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement.* * * Pursuant to §313, the Secretary of HEW" } ]

[ { "docid": "4207605", "title": "", "text": "\"Plaintiff, a non-career reserve general medical officer in the Air Force, brought this action to recover the sum of $12,000 in variable incentive pay (VIP) pursuant to 37 U.S.C. 313 (Supp V, 1975) and Department of Defense directive 1340.11 issued pursuant thereto. The case is before the court on the parties’ cross-motions for summary judgment, and we have concluded that under the undisputed facts, the plaintiff has not stated a claim upon which this court can grant relief and the case may be disposed of on the motions. 37 U.S.C. 313(a) provides, in pertinent part, as follows: (a) Under regulations prescribed by the Secretary of Defense or by a Secretary of Health, Education and Welfare, as appropriate, and approved by the President, an officer of the Army or Navy in the Medical Corps, an officer of the Air Force who is designated as a medical officer, or a medical officer of the Public Health Service, who (6) executes a written active duty agreement under which he will receive incentive pay for completing a specified number of years of continuous active duty subsequent to executing such an agreement; may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement. * * * \"Plaintiff entered the Air Force on July 21, 1971 for initial active duty obligation of 2 years. Thereafter, plaintiff entered into a Specified Period of Time Contract (SPTC) whereby he agreed to extend his period of active duty for a 36-month overseas tour with an established date of separation of July 22, 1975. By letter of September 30, 1974, plaintiff submitted an application for variable incentive pay (VIP) whereby he agreed to remain on active duty for 1 year from that date in consideration of his receiving VIP. On the same date, September 30, 1974, plaintiff also submitted a Specified Period of Time Contract whereby he offered to agree to remain on active duty until October" }, { "docid": "19101898", "title": "", "text": "whether the words \"the officer’s performance has deteriorated” cover deterioration before as well as after the variable incentive pay agreement had been entered into. We conclude that the regulation permits termination only for deterioration that occurs after the agreement and does not authorize the Navy to do what it did here: terminate on the basis of deterioration of performance that antedated the agreement but of which the Variable Incentive Pay Selection Board did not learn until after the agreement was executed. Cf. Harmon v. Brucker, 355 U.S. 579 (1958); Murray v. United States, 154 Ct. Cl. 185 (1961). The statute provides for variable incentive pay for medical officers who are \"qualified to enter into an active duty agreement for a specified number of years.” The regulation provides that an officer’s \"entitlement to variable incentive pay” may be terminated at any time upon a determination that the officer’s \"performance has deteriorated to a level at which no premium should be placed on his continued service.” The regulation addresses the situation where there has been a change in circumstances since the active duty agreement was executed, namely, that an officer originally qualified for premium pay is no longer so qualified because his \"performance has deteriorated to a level at which no premium should be placed on his continued service.” The time reference of the words \"has deteriorated” is to the period since the active duty agreement was executed, not to deterioration since some more remote time. This conclusion comports with the fact that to participate in the program the officer must \"execute ... a written active duty agreement” which the Secretary then accepts. Although the government asserts that this written agreement was not a contract, this argument is a mere play on words. An agreement is a contract, and vice versa. The Navy itself so characterized its agreement with the plaintiff when it informed him on April 28, 1975, that his \"variable incentive pay contract” would be cancelled on September 19,1975. This court has described an active duty agreement as \"an agreement or contract between the officer and the Navy that provides" }, { "docid": "19101897", "title": "", "text": "for the fractional part of the period of active duty that he served, and he may be required to refund any amount he received in excess of that entitlement. The Secretary of Defense promulgated a regulation which authorizes the Secretaries of the armed services to terminate a medical officer’s entitlement to variable incentive pay, at any time, upon a determination by a board composed of medical officers, that the officer’s performance has deteriorated to a level at which no premium should be placed on his continued service. In the event of such termination of entitlement, the officer shall be entitled to be paid only for the proportionate part of the period of active duty that he served under the agreement, and he shall refund any amount he received in excess of that entitlement. Department of Defense, Directive No. 1340.11 para. III.K (1974). The Navy used almost identical language in its own instructions concerning termination of naval officers in the program. Department of the Navy, SECNAV Instruction No. 7220.75.8 (1974). B. The legal issue here is whether the words \"the officer’s performance has deteriorated” cover deterioration before as well as after the variable incentive pay agreement had been entered into. We conclude that the regulation permits termination only for deterioration that occurs after the agreement and does not authorize the Navy to do what it did here: terminate on the basis of deterioration of performance that antedated the agreement but of which the Variable Incentive Pay Selection Board did not learn until after the agreement was executed. Cf. Harmon v. Brucker, 355 U.S. 579 (1958); Murray v. United States, 154 Ct. Cl. 185 (1961). The statute provides for variable incentive pay for medical officers who are \"qualified to enter into an active duty agreement for a specified number of years.” The regulation provides that an officer’s \"entitlement to variable incentive pay” may be terminated at any time upon a determination that the officer’s \"performance has deteriorated to a level at which no premium should be placed on his continued service.” The regulation addresses the situation where there has been a change" }, { "docid": "10339129", "title": "", "text": "by the statute’s express terms. Thus the implied contract was one which could have been made express, and the Eastport standard was met. This is not spelled out in the opinion, presumably because not debated by counsel. But the ease is clearly not authority that the Government may be mulcted under an implied contract in a situation where it could not have made an express one that would be binding. We agree with the Army lawyers that the decisive issue in this case is whether 10 U.S.C. § 2386 authorizes expenditure of appropriated funds to purchase suggestions of the kind plaintiff submitted. That section reads as follows: Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department: (1) Copyrights, patents, and applications for patents. (2) Licenses under copyrights, patents, and applications for patents. (3) Designs, processes, and manufacturing data. (4) Releases, before suit is brought, for past infringement of patents or copyrights. We do not think plaintiff’s ideas naturally fit any of these statutory categories. The mot juste for them appears to us to be “suggestions.” Congress did not authorize expenditures under § 2386 for mere suggestions. That it knew how to do so when it wished is evident from 5 U.S.C. § 4503, which authorizes payment of cash awards for the honorary recognition of an employee [of the Government] who (1) by his suggestion [emphasis supplied] invention, superior accomplishment, or other personal effort contributes to the efficiency, economy or other improvement of Government operations; * *. This of course was given the widest possible scope, pursuant to the Congressional desire to provide incentives to leaven the lump of the Civil Service, where too often superior performance and mediocrity fare exactly the same with respect to promotion and rewards. The nature of the “suggestion” that might qualify for an award appears in Shaller v. United States, 202 Ct.Cl. 571, cert. denied, 414 U.S. 1092, 94 S.Ct. 723, 38 L.Ed.2d 549" }, { "docid": "21531226", "title": "", "text": "Eric D. Caine represents the claims of the PHS/NIH Associates; 2) Dr. Richard B. Everson represents the claims of the COSTEP physicians (he also has a claim as a PHS/NIH Associate); and 3) Dr. Robert H. Breyer represents the claims of the CORD physicians. 424 U.S. 392 (1976). Senior T.J. White recommended VIP recovery for the PHS/NIH Associates, but denied such recovery to both the COSTEP and CORD physicians. In some instances, COSTEP and CORD physicians also occupied Associate positions. See. e.g., n.1 supra, at 1. §1(4), 88 Stat. 95 (1974). Now the Department of Education and the Department of Health and Human Services. See P.L. 96-88, 93 Stat. 677-681, 696 (codified at 20 U.S.C. §§3401, 3441-3447 (1976 & Supp. III 1979)). The VIP bill, as originally proposed, only encompassed DOD physicians; however, It was later amended in conference to include PHS physicians. H.R. CONF. REP. NO. 93-984, 93rd Cong., 2d Sess., reprinted in [1974] U.S. CODE CONG. & AD. NEWS 2923, 2924-5. 37 U.S.C. §313 was amended both in 1976 and 1979: P.L. 94-273, §43, 90 Stat. 381 (1976); P.L. 96-107, Title VIII, §804(b), 93 Stat. 812 (1979). Note that the payment of variable incentive pay is supplementary In nature. PHS regulations promulgated pursuant to §313, became effective September 9, 1974. The regulations provided in pertinent part, as follows: Variable Incentive Pay for Commissioned Medical Officers C. Definitions. 1. As used in these regulations, the following definitions apply: c. Initial Active Duty Obligations. The first obligation to serve on active duty for a specified period of time imposed on medical officers by a law or imposed by a regulation issued by the Secretary of HEW. An obligation incurred as a result of the commissioning process shall not be construed as an initial active duty obligation. e. Disqualifying Active Duty Obligation. An obligation to enter or remain on active duty incurred as a result of: (1) An initial active duty obligation of four years or less; or the first four years of an initial duty obligation of more than four years. (a) Unfulfilled active duty service obligation resulting from participation" }, { "docid": "19101895", "title": "", "text": "1974. The report placed plaintiff in the lower half of the category termed \"Typically Effective Officer.” The rating officer also included derogatory comments about plaintiffs performance. On the basis of this information the Board concluded that plaintiff should no longer remain in the program. The Board decided that plaintiffs variable incentive pay would terminate after the first year of his agreement ended on September 19, 1975, and so informed him. In March 1976, plaintiff, who then had served in the Navy for 20 years, requested voluntary retirement. Plaintiff retired as a captain at the end of July 1976. The plaintiff contends that the Navy breached its variable incentive pay agreement with him by terminating his participation in the program on the basis of his pre-agreement performance of duty. He seeks damages of (1) the $11,300 he would have received for the second year of the variable incentive pay agreement, and (2) the approximately $15,000 he allegedly expended in efforts to obtain similar employment after the variable incentive pay agreement was terminated. Plaintiff seeks summary judgment only on the issue of liability, namely, the propriety of the Navy’s termination of his variable incentive pay agreement. Defendant, however, in its cross-motion, seeks summary judgment on both issues. II. A. The statute provides that eligible medical officers who are \"qualified in a critical specialty” and \"determined . . . to be qualified to enter into an active duty agreement for a specified number of years,” and who sign \"a written active duty agreement” covering a specific number of years \"may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement.” 37 U.S.C. § 313(a). The statute also provides: (b) Under regulations prescribed by the Secretary of Defense, the Secretary concerned, or his designee, may terminate, at any time, an officer’s entitlement to the special pay authorized by this section. In that event, the officer is entitled to be paid only" }, { "docid": "4368994", "title": "", "text": "could have been used to purchase a \"design,” by the statute’s express terms. Thus the implied contract was one which could have been made express, and the Eastport standard was met. This is not spelled out in the opinion, presumably because not debated by counsel. But the case is clearly not authority thát the Government may be mulcted under an implied contract in a situation where it could not have made an express one that would be binding. We agree with the Army lawyers that the decisive issue in this case is whether 10 U.S.C. § 2386 authorizes expenditure of appropriated funds to purchase suggestions of the kind plaintiff submitted. That section reads' as follows: Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department: (1) Copyrights, patents, and applications for patents. (2) Licenses under copyrights, patents, and applications for patents. (3) Designs, processes, and manufacturing data. (4) Releases, before suit is brought, for past infringement of patents or copyrights. We do not think plaintiffs ideas naturally fit any of these statutory categories. The mot juste for them appears to us to be \"suggestions.” Congress did not authorize expenditures under § 2386 for mere suggestions. That it knew how to do so when it wished is evident from 5 U.S.C. § 4503, which authorizes payment of cash awards for the honorary recognition of an employee [of the Government] who (1) by his suggestion [emphasis supplied], invention, superior accomplishment, or other personal effort contributes to the efficiency, economy or other improvement of Government operations; * * *. This of course was given the widest possible scope, pursuant to the Congressional desire to provide incentives to leaven the lump of the Civil Service, where too often superior performance and mediocrity fare exactly the same with respect to promotion and rewards. The nature of the \"suggestion” that might qualify for an award appears in Shaller v. United States, 202 Ct. Cl. 571, cert." }, { "docid": "21531227", "title": "", "text": "§43, 90 Stat. 381 (1976); P.L. 96-107, Title VIII, §804(b), 93 Stat. 812 (1979). Note that the payment of variable incentive pay is supplementary In nature. PHS regulations promulgated pursuant to §313, became effective September 9, 1974. The regulations provided in pertinent part, as follows: Variable Incentive Pay for Commissioned Medical Officers C. Definitions. 1. As used in these regulations, the following definitions apply: c. Initial Active Duty Obligations. The first obligation to serve on active duty for a specified period of time imposed on medical officers by a law or imposed by a regulation issued by the Secretary of HEW. An obligation incurred as a result of the commissioning process shall not be construed as an initial active duty obligation. e. Disqualifying Active Duty Obligation. An obligation to enter or remain on active duty incurred as a result of: (1) An initial active duty obligation of four years or less; or the first four years of an initial duty obligation of more than four years. (a) Unfulfilled active duty service obligation resulting from participation in a Senior Medical Student Program [COSTEP]. (d) An agreement entered into by an individual to serve after a period of deferment (CORD * * *). (2) Period of time while a medical officer is participating in an intern or initial residency training program while on active duty [Associates]. On September 16, 1975, the VIP regulations were amended to include the following provision: No medical officer(s) shall receive Variable Incentive Pay earlier than the date they would have become eligible for such pay if they had entered on active duty immediately after an initial active duty obligation was incurred, and they served on active duty continuously until completion of the obligatory service. See n.3 supra, at 346. 5 U.S.C. §5101 et seq. (1976). As to the other federal statute that plaintiff invoked, 5 U.S.C. §5596(b) (1976) (Back Pay Act), the Court held that it did not apply to wrongful classification claims. Section 313(b) provides in pertinent part: Under regulations prescribed by the Secretary of Defense, the Secretary concerned, or his designee, may terminate, at any" }, { "docid": "21374375", "title": "", "text": "by statute or regulation, a medical officer is barred from receiving VIP. Specifically, the medical officer must be (1) \"below the pay grade of O-7;” (2) \"not serving an initial active duty obligation of four years or less or . . . not serving the first four years of an initial active duty obligation of more than four years;” and (3) \"not undergoing intern or initial residency training.” 37 U.S.C. § 313(a)(1), (4), and (5). See also DOD Directive 1340.11.III.B and .C. It was at this step that the medical officers in Adair were found not entitled to VIP. Under regulations of the Secretary of HEW, the officers in the three categories there involved had a disqualifying active duty obligation under section 313(a)(4). Adair determined only that we are without jurisdiction to decide whether plaintiffs as a group were improperly classified as subject to a disqualifying active duty obligation. The second step is determining if an officer is \"designated as being qualified in a critical specialty.” 37 U.S.C. § 313(a)(2), DOD Directive 1340.11.III.A. A critical specialty is one \"in which the supply of qualified personnel is, or is projected to be, inadequate to meet military service requirements as designed by the Secretary.” DOD Directive 1340.11.II.B. The third step involves evaluating the individual officers who have been determined to be \"eligible for variable incentive pay.” DOD Directive 1340.11.III.E. Officers are then placed in one of the two following categories: 1. An officer qualified in a designated critical specialty whose professional qualifications or demonstrated performance, in relation to his Military Department’s need for such officers, indicates that a premium should be placed on his procurement or retention in the active service. 2. An officer qualified in a designated critical specialty whose professional qualifications or demonstrated performance indicates that no premium should be placed on his procurement or continued active service. Plaintiff was denied VIP at this third step. The Board that evaluated plaintiff and 489 other medical officers examined only persons qualified in a designated critical specialty. Its only task was to determine whether each officer through training and experience, has acquired" }, { "docid": "21531216", "title": "", "text": "designated as being qualified in a critical specialty by the Secretary concerned; (3) is determined by a board composed of officers in the medical profession under criteria prescribed by the Secretary concerned to be qualified to enter into an active duty agreement for a specified number of years; (4) is not serving an initial active duty obligation of four years or less or is not serving the first four years of an initial active duty obligation of more than four years; (5) is not undergoing intern or initial residency training; and (6) executes a written active duty agreement under which he will receive incentive pay for completing a specified number of years of continuous active duty subsequent to executing such an agreement; may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement.* * * Pursuant to §313, the Secretary of HEW promulgated regulations which defined an \"initial active duty obligation of four years or less, or the first four years of an initial active duty obligation of more than four years” to include COSTEP and CORD physicians. 37 U.S.C. §313(a)(4). As such, these physicians were precluded from receiving VIP. Similarly, these regulations were interpreted by the Secretary to render Associates ineligible for VIP. Plaintiffs, serving on active duty for varying lengths of time during the period subsequent to the enactment of §313, claimed entitlement to VIP on the grounds that other PHS physicians performing duties of equal or lesser responsibility were receiving these benefits. Because of plaintiffs’ membership in the COSTEP, CORD or Associates programs, they were denied VIP. Plaintiffs timely filed suit in this court seeking the award of VIP in the amount and for the period of time to be determined in accordance with the facts of each respective plaintiff. The Government essentially bases its argument on the Testan case and contends, inter alia, that §313 is not a \"money mandating” statute which would" }, { "docid": "21531222", "title": "", "text": "the Secretaries of DOD and HEW could offer pecuniary bonuses in recruiting physicians for various government positions. If the Secretaries, acting through boards composed of officers in the medical profession, determined that particular vacancies could be filled without offering VIP, then it was not necessary to provide VIP as an incentive. 37 U.S.C. §313(a)(3). \"This authority would be used in varying amounts by the Defense Department [or PHS] as the need dictates and would be used only where necessary to meet shortages of critically needed health personnel.” H.R. REP. NO. 93-883, 93rd Cong., 2d Sess., reprinted in [1974] U.S. CODE CONG. & AD. NEWS 2923, 2926. If Congress had intended all DOD and PHS physicians to receive VIP benefits, it simply could have enacted an across-the-board base salary increase. Clearly Congress envisioned that physicians working side-by-side and performing essentially the same duties, would not necessarily receive the same salary — one might be eligible for VIP while the other was not. Even if we are to accept plaintiffs’ contention that the regulations excluding COSTEP, CORD and Associate physicians from receiving VIP are invalid, it does not necessarily follow that plaintiffs would be entitled to VIP. Section 313 sets forth six eligibility requirements plus an overriding discretionary requirement that a written active duty agreement be accepted by the Secretary. The Secretary, for example, could disappoint any physician’s expectations of selection for VIP by determining that the group to which that physician belongs is not a \"critical specialty”. §313(a)(2). Moreover, the statute expressly provides that the Secretary is to prescribe the criteria under which the selection board is to operate. Given the Secretary’s authority to prescribe these qualifications, as well as the selection board’s discretion in implementing them, a physician’s expectations for VIP could be frustrated at any time. Id. Furthermore, even if a physician is chosen to receive VIP, there is nothing in the statute obligating the Government to pay $13,500 — some lesser amount, say $500.00, may be determined sufficient in a particular case. Since §313 is discretionary in nature, we cannot say with certainty that plaintiffs would have been" }, { "docid": "21531228", "title": "", "text": "in a Senior Medical Student Program [COSTEP]. (d) An agreement entered into by an individual to serve after a period of deferment (CORD * * *). (2) Period of time while a medical officer is participating in an intern or initial residency training program while on active duty [Associates]. On September 16, 1975, the VIP regulations were amended to include the following provision: No medical officer(s) shall receive Variable Incentive Pay earlier than the date they would have become eligible for such pay if they had entered on active duty immediately after an initial active duty obligation was incurred, and they served on active duty continuously until completion of the obligatory service. See n.3 supra, at 346. 5 U.S.C. §5101 et seq. (1976). As to the other federal statute that plaintiff invoked, 5 U.S.C. §5596(b) (1976) (Back Pay Act), the Court held that it did not apply to wrongful classification claims. Section 313(b) provides in pertinent part: Under regulations prescribed by the Secretary of Defense, the Secretary concerned, or his designee, may terminate, at any time, an officer’s entitlement to the special pay authorized by this section. In that event, the officer is entitled to be paid only for the fractional part of the period of active duty that he served, and he may be required to refund any amount he received in excess of that entitlement. During the House Floor consideration of P.L. 93-274, the permissive, rather than mandatory, nature of the VIP program was repeatedly emphasized. Congressman Hebert, a major proponent of the bill, specifically addressed that very point: I want to say in one very emphatic manner that what we do today is not mandatory or compulsory. This bonus in this legislation is permissive. Not one dollar has to be spent [by DOD or PHS] for a bonus for any of these professions. The [DOD and PHS] in its own judgment can expend the fund. On the same day, Congressman Hunt, another supporter of the bill, stressed the following: This is not a bill that says, \"Now we shall pay this money.” This is a bill that" }, { "docid": "21531221", "title": "", "text": "is properly separated from the service.” If it was found that the officer was improperly separated, e.g., defective OER(s) and passovers, then §204 absolutely entitled him to back pay. Thus in Skinner, the statute provided for mandatory relief upon proof of the existence of certain conditions. We held that this was the jurisdictional prerequisite. Here, by contrast, neither §313 nor the regulations promulgated thereunder provide for mandatory payment of money to physicians under the circumstances which allegedly exist. Section 313(b), the next section of the statute after the one quoted above, provides that, under regulations he may prescribe, the Secretary may at any time terminate any officer’s entitlement to VIP. Cf. German v. United States, 225 Ct. Cl. 1, 633 F.2d 1369 (1980). If this can happen to one who has previously qualified and received a signed agreement, it is hardly consistent to suppose Congress ever intended any vested entitlement for one who has not satisfied all these prerequisites. The facts show that under the provisions of §313 Congress established a discretionary mechanism by which the Secretaries of DOD and HEW could offer pecuniary bonuses in recruiting physicians for various government positions. If the Secretaries, acting through boards composed of officers in the medical profession, determined that particular vacancies could be filled without offering VIP, then it was not necessary to provide VIP as an incentive. 37 U.S.C. §313(a)(3). \"This authority would be used in varying amounts by the Defense Department [or PHS] as the need dictates and would be used only where necessary to meet shortages of critically needed health personnel.” H.R. REP. NO. 93-883, 93rd Cong., 2d Sess., reprinted in [1974] U.S. CODE CONG. & AD. NEWS 2923, 2926. If Congress had intended all DOD and PHS physicians to receive VIP benefits, it simply could have enacted an across-the-board base salary increase. Clearly Congress envisioned that physicians working side-by-side and performing essentially the same duties, would not necessarily receive the same salary — one might be eligible for VIP while the other was not. Even if we are to accept plaintiffs’ contention that the regulations excluding COSTEP, CORD" }, { "docid": "19101896", "title": "", "text": "only on the issue of liability, namely, the propriety of the Navy’s termination of his variable incentive pay agreement. Defendant, however, in its cross-motion, seeks summary judgment on both issues. II. A. The statute provides that eligible medical officers who are \"qualified in a critical specialty” and \"determined . . . to be qualified to enter into an active duty agreement for a specified number of years,” and who sign \"a written active duty agreement” covering a specific number of years \"may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement.” 37 U.S.C. § 313(a). The statute also provides: (b) Under regulations prescribed by the Secretary of Defense, the Secretary concerned, or his designee, may terminate, at any time, an officer’s entitlement to the special pay authorized by this section. In that event, the officer is entitled to be paid only for the fractional part of the period of active duty that he served, and he may be required to refund any amount he received in excess of that entitlement. The Secretary of Defense promulgated a regulation which authorizes the Secretaries of the armed services to terminate a medical officer’s entitlement to variable incentive pay, at any time, upon a determination by a board composed of medical officers, that the officer’s performance has deteriorated to a level at which no premium should be placed on his continued service. In the event of such termination of entitlement, the officer shall be entitled to be paid only for the proportionate part of the period of active duty that he served under the agreement, and he shall refund any amount he received in excess of that entitlement. Department of Defense, Directive No. 1340.11 para. III.K (1974). The Navy used almost identical language in its own instructions concerning termination of naval officers in the program. Department of the Navy, SECNAV Instruction No. 7220.75.8 (1974). B. The legal issue here is" }, { "docid": "21531223", "title": "", "text": "and Associate physicians from receiving VIP are invalid, it does not necessarily follow that plaintiffs would be entitled to VIP. Section 313 sets forth six eligibility requirements plus an overriding discretionary requirement that a written active duty agreement be accepted by the Secretary. The Secretary, for example, could disappoint any physician’s expectations of selection for VIP by determining that the group to which that physician belongs is not a \"critical specialty”. §313(a)(2). Moreover, the statute expressly provides that the Secretary is to prescribe the criteria under which the selection board is to operate. Given the Secretary’s authority to prescribe these qualifications, as well as the selection board’s discretion in implementing them, a physician’s expectations for VIP could be frustrated at any time. Id. Furthermore, even if a physician is chosen to receive VIP, there is nothing in the statute obligating the Government to pay $13,500 — some lesser amount, say $500.00, may be determined sufficient in a particular case. Since §313 is discretionary in nature, we cannot say with certainty that plaintiffs would have been selected to receive VIP in the absence of the contested regulations. Therefore, plaintiffs have not established the existence of any right to money damages flowing from the alleged violations. Jurisdiction is wanting. See generally, Skinner v. United States, supra; Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). Accord Hendricks v. United States, 210 Ct.Cl. 266, 283 n.16 (1976). Plaintiffs further argue that the Government’s use of Testan to deny them VIP mistakes the thrust of their position. They contend that they do not attempt to recover a money damage claim based on §313, but attempt by use of §313, to have the Secretary’s regulations declared invalid. Cf. Hendricks v. United States, 210 Ct.Cl. at 283 n.16. Plaintiffs again have failed to recognize that there is nothing in the record to suggest that they necessarily would have been selected to receive VIP. In effect plaintiffs are requesting relief in the form of a declaratory judgment. As stated by the Supreme Court, \"in the absence of an express grant of jurisdiction from Congress, the" }, { "docid": "21374374", "title": "", "text": "completely ineffective in his present position. He has not been able to establish an appropriate professional or command relationship between himself, his subordinates and superiors. Despite counselling from this HQ, there has been no change in his attitude or performance. Pardo had effected an interservice transfer to the Air Force in 1978. FRIEDMAN, Chief Judge, concurring: Although I agree with the result the majority reaches, I cannot agree that Adair is controlling. The question whether we have jurisdiction over this claim under United States v. Testan, 424 U.S. 392 (1976), is a difficult one. Since I conclude that the plaintiff has not demonstrated that the Army Board for the Correction of Military Records acted arbitrarily or capriciously in refusing to remove the unfavorable OER from his file, I would pretermit the jurisdictional issue and hold for the defendant on the merits. The determination whether a medical officer is entitled to VIP is a three-step process. 37 U.S.C. § 313 (1976); Department of Defense Directive 1340.11 (September 12, 1974). The first step is to determine whether, by statute or regulation, a medical officer is barred from receiving VIP. Specifically, the medical officer must be (1) \"below the pay grade of O-7;” (2) \"not serving an initial active duty obligation of four years or less or . . . not serving the first four years of an initial active duty obligation of more than four years;” and (3) \"not undergoing intern or initial residency training.” 37 U.S.C. § 313(a)(1), (4), and (5). See also DOD Directive 1340.11.III.B and .C. It was at this step that the medical officers in Adair were found not entitled to VIP. Under regulations of the Secretary of HEW, the officers in the three categories there involved had a disqualifying active duty obligation under section 313(a)(4). Adair determined only that we are without jurisdiction to decide whether plaintiffs as a group were improperly classified as subject to a disqualifying active duty obligation. The second step is determining if an officer is \"designated as being qualified in a critical specialty.” 37 U.S.C. § 313(a)(2), DOD Directive 1340.11.III.A. A critical" }, { "docid": "22845828", "title": "", "text": "responsibilities of his employment. The Act of August 2, 1946, 60 Stat. 809, 5 U. S. C. 116a, authorizes the heads of departments, under such rules and regulations as the President may prescribe, to pay cash awards to civilian officers and employees who make meritorious suggestions resulting in improvement or economy in the operation of the departments, if the suggestion does not represent a part of the normal requirements of the duties of the position of the person making the suggestion. The President issued regulations which appear in 5 CFE, part 32; 12 F. E. 2905. Section 32.1 of 5 CFE provides that a suggestion should make a civilian officer or employee eligible for a cash award, if the suggestion, “in the judgment of the department head or other duly authorized officer in the department, has resulted or will result in improvement or economy * * Section 32.7 of the regulations says, as does the statute, that no award shall be paid for a suggestion which represents a part of the normal requirements of the position of the one making the suggestion. The plaintiff’s claims for bonuses were considered by the department and denied. We think the statute authorizing awards for useful suggestions, and delegating to the President the power to issue regulations about this subject, contemplated that the head of the department should have a considerable discretion in deciding whether or not an award was justified. The regulations themselves, as we have seen, submit the question to the “judgment of the department head.” There is much reason for not submitting such claims to litigation. We do not decide whether or not the question could, under any circumstances, be litigated. But where, as here, the officer’s claim was, so far as appears, fairly considered, though denied, we think there is no ground for suit. The Government’s demurrer to the third and fourth counts will, therefore, be sustained. In the fifth count of his petition, the plaintiff claims a lump sum of $666.80 for forty days of accumulated sick leave which he had at the time his employment was terminated. The" }, { "docid": "10339130", "title": "", "text": "for past infringement of patents or copyrights. We do not think plaintiff’s ideas naturally fit any of these statutory categories. The mot juste for them appears to us to be “suggestions.” Congress did not authorize expenditures under § 2386 for mere suggestions. That it knew how to do so when it wished is evident from 5 U.S.C. § 4503, which authorizes payment of cash awards for the honorary recognition of an employee [of the Government] who (1) by his suggestion [emphasis supplied] invention, superior accomplishment, or other personal effort contributes to the efficiency, economy or other improvement of Government operations; * *. This of course was given the widest possible scope, pursuant to the Congressional desire to provide incentives to leaven the lump of the Civil Service, where too often superior performance and mediocrity fare exactly the same with respect to promotion and rewards. The nature of the “suggestion” that might qualify for an award appears in Shaller v. United States, 202 Ct.Cl. 571, cert. denied, 414 U.S. 1092, 94 S.Ct. 723, 38 L.Ed.2d 549 (1973). There is no evidence of any such liberality respecting outside parties submitting suggestions called unsolicited value engineering proposals. The distinction between mere suggestions and secrets, designs, processes, or data protected as intellectual property, is recognized in law respecting dealings of private parties. Thus in Federal Welding Service, Inc. v. Dioguardi, 184 F.Supp. 333 (E.D.N.Y. 1960), the court held that the concept of limiting the height of metal caskets to 24 inches, so that three could be stacked one on top of another, in one grave, was not protected intellectual property. There must be entrusted “by the complaining party to another, of a tangible thing in condition for reproduction, not the mere concept of a desirable result” p. 338. It is not, however, intended to suggest that Congress incorporated in § 2386 any state common law respecting intellectual property. It must be read in light of its own language, its context in the U. S. Code and the administrative interpretation it has been given. The trial judge does not advert in his opinion to §" }, { "docid": "21531217", "title": "", "text": "promulgated regulations which defined an \"initial active duty obligation of four years or less, or the first four years of an initial active duty obligation of more than four years” to include COSTEP and CORD physicians. 37 U.S.C. §313(a)(4). As such, these physicians were precluded from receiving VIP. Similarly, these regulations were interpreted by the Secretary to render Associates ineligible for VIP. Plaintiffs, serving on active duty for varying lengths of time during the period subsequent to the enactment of §313, claimed entitlement to VIP on the grounds that other PHS physicians performing duties of equal or lesser responsibility were receiving these benefits. Because of plaintiffs’ membership in the COSTEP, CORD or Associates programs, they were denied VIP. Plaintiffs timely filed suit in this court seeking the award of VIP in the amount and for the period of time to be determined in accordance with the facts of each respective plaintiff. The Government essentially bases its argument on the Testan case and contends, inter alia, that §313 is not a \"money mandating” statute which would give this court jurisdiction to grant relief under a statute. 28 U.S.C. §1491 (1976) (Tucker Act). The Government continues that even if this court assumes arguendo that the regulations denying plaintiffs VIP are inconsistent with the statute, §313 nevertheless lacks the \"money mandating” element required by Testan. Plaintiffs, on the other hand, attempt to counter the Government’s Testan analysis by attacking the PHS regulations that exclude them from receiving VIP benefits. They argue that since such regulations are invalid, they are entitled to a money judgment. The Testan case, plaintiffs contend, therefore does not apply in the instant matter. Because we find plaintiffs’ analysis inapposite to the matter before us, we hold for the Government. II. Plaintiffs filed in this court under the Tucker Act, 28 U.S.C. §1491 (1976), which provides in pertinent part: The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract" }, { "docid": "21531229", "title": "", "text": "time, an officer’s entitlement to the special pay authorized by this section. In that event, the officer is entitled to be paid only for the fractional part of the period of active duty that he served, and he may be required to refund any amount he received in excess of that entitlement. During the House Floor consideration of P.L. 93-274, the permissive, rather than mandatory, nature of the VIP program was repeatedly emphasized. Congressman Hebert, a major proponent of the bill, specifically addressed that very point: I want to say in one very emphatic manner that what we do today is not mandatory or compulsory. This bonus in this legislation is permissive. Not one dollar has to be spent [by DOD or PHS] for a bonus for any of these professions. The [DOD and PHS] in its own judgment can expend the fund. On the same day, Congressman Hunt, another supporter of the bill, stressed the following: This is not a bill that says, \"Now we shall pay this money.” This is a bill that is permissive, and it says, \"If the money is needed, if the incentive is needed, then the Department of Defense [or PHS] has the leeway to extend to them the added emoluments of money insofar as the bonus is concerned. . . .” 120 CONG. REC. 9318, 9321 (1974). The Government contends that plaintiffs’ claim must also fail because the active duty agreements entered into by plaintiffs have not been duly accepted by the Secretary concerned or his designee. §313(a)(6). Reele v. United States, 214 Ct.Cl. 739 (1977). We find it unnecessary to reach this particular question because we feel the purely discretionary nature of the monetary payments in this case creates a want of jurisdiction ab initio. See n.9 supra, and accompanying text at 347." } ]

[ { "docid": "22072697", "title": "", "text": "345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1953); Overstreet v. North Shore Corp., 318 U. S. 125, 63 S.Ct. 494, 87 L.Ed. 666 (1943); Pedersen v. Delaware, L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125 (1913). Thus, in order to protect interstate commerce, intrastate telephonic messages have been placd under the statutory prohibition pertaining to unauthorized publication or use of communications under 47 U.S.C. § 605. Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298 (1939). We recognize that the telephone system and its voice transmission by wire is an integrated system of both intrastate and interstate commerce. Cf. Lipinski v. United States, 251 F.2d 53 (10 Cir. 1958). As such, proof of the interstate telephonic message is not a prerequisite to jurisdiction over a Section 10(b) action. As long as the instrumentality itself is an integral part of an interstate system, nothing in the Constitution requires Congress to exclude intrastate activities from its regulatory control. See Weiss v. United States, supra. But there exists additional grounds to sustain jurisdiction. It is the rule that where any interstate use is made to perpetuate the original fraudulent concealment or transaction, even though not part of the original solicitation or inducement of sale involved, that nevertheless the subsequent use of interstate facilities in furthering the scheme is sufficient to establish federal jurisdiction. Creswell-Keith, Inc. v. Willingham, 264 F.2d 76, 80, 82 (8 Cir. 1959); see also Thomas v. United States, 227 F.2d 667, 670 (9 Cir. 1955) [use of automobile]; Ellis v. Carter, 291 F.2d 270, 274 (9 Cir. 1961) [use of plane]; cf. Boone v. Baugh, 308 F.2d 711 (8 Cir. 1962). Appellees contended that they were fraudulently induced to sell their stock to the appellants, that the purchases were made by parties (the Myzels) other than the true buyers (the Levines) and that an Illinois corporation owned by some of the appellants was used as a conduit of concealment. The transfers of the stock to the Illinois corporation, although occurring several months and even years later, involved" } ]

[ { "docid": "22861441", "title": "", "text": "which slightly more is needed for notice. In a fraud action, a plaintiff need also state “with particularity” the circumstances constituting the fraud. Tornera has done so. Among the fraudulent schemes constituting a violation of rule 10b-5 is selling securities either by omitting to disclose material facts or by making false statements. Tomera’s first amended complaint relates with particularity such a scheme. She states that on September 26, 1969, Alfred Rodriquez, then president of Astir, S.A. and technical director of Candemena, sold her several notes and 80 shares of unregistered stock in the mining companies he promoted. She further alleges defendant informed her that these three companies held valid mine leases in Mexico, were carrying on silver mining operations and processing the ore, and planned to use the funds she invested to further develop the mine property and facilities. In fact none of this vital information was true. These averments describing the bare bones of the fraudulent scheme coupled with Tomera’s allegations that defendants used the mails and other instruments of transportation in interstate commerce state a sufficient rule 10b-5 claim. Tornera named besides Rodriquez, other individual defendants whd allegedly were joint venturers with him, and three corporate defendants in whose name they all did business. A joint venture agreement which was signed by nearly all defendants and which contained their plan to organize Astir, S.A. and Candemena was attached to the complaint and set out more than enough details of defendant’s common purpose and their control over the defendant corporations. Cf. Carroll v. First National Bank, supra. Rule 10b-5 claimants need not plead nor prove scienter. It was error for the district court to require Tornera to plead it. In Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), this circuit was faced with the problem of determining the correct limitations period for 10b-5 claims. The choice lay between either Illinois Blue Sky securities fraud, or the state common law fraud, statute of limitations. Congress did not provide a limitations period for 10b-5 claims. Using the resemblance test, the court found the Blue Sky statute closest" }, { "docid": "8491213", "title": "", "text": "Eighth, have recently applied the statutes of limitation of the local “blue sky” statutes to federal 10b-5 actions involving securities fraud. Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. 1970) and Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972). In Parrent v. Midwest Rug Mills, Inc., supra, the court held that in an action under the federal securities laws with respect to the use of manipulative or deceptive devices in connection with the purchase or sale of a security and use of means or instruments of transportation or communication in interstate commerce to defraud, the three-year limitations provision in the Illinois Securities Law applied rather than the five-year Illinois statute applicable to actions for fraud since, inter alia, the former provision best effectuated the federal policy of protecting the “uninformed, the ignorant, the gullible,” and since the state and federal securities laws resembled one another. In Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967), cited by Vanderboom v. Sexton, supra and Parrent v. Midwest Rug Mills, Inc., supra, it was established that the basic standard for determining which of the various local periods of limitation to utilize is the “one which best effectuates the federal policy at issue.” The court in Vanderboom v. Sexton, supra, found the Arkansas “blue sky” statute most closely' resembled the federal statute 10b-5 and therefore applied the “blue sky” period of limitation as the statute which best effectuated the federal policy involved. Vanderboom, supra, 422 F.2d at 1237 and 1238. This court finds the approaches of the courts in Vanderboom and Parrent to be the best method for determining which limitations period applies in securities fraud actions. We will now consider the similarities between the Virginia “blue sky laws” and Securities and Exchange Act Rule 10b-5. Rule 10b-5 states: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud. (b) To make any untrue statement" }, { "docid": "6284621", "title": "", "text": "state’s blue sky law — the Court held that the Arkansas blue sky statute bore the closest resemblance to section 10(b). In so holding, the Court found a distinct commonality of purpose lacking between section 10(b) and Arkansas common law fraud; and similarly, the Court found that section 10(b) and common law fraud did not have a congruence of substantially the same defenses. Id. at 1238-39. Subsequently, in In re Alodex Corporation Securities Litigation, supra, this Court was faced with the Vanderboom issue in the context of Iowa law. On the basis of the analysis articulated in Vanderboom, we affirmed the district court’s judgment dismissing a Rule 10b-5 action because the timeliness of the action was controlled by the two-year period governing actions brought under the Iowa Securities Act. In rejecting the contention that the Iowa statute of limitations for common law fraud governed the timeliness of the plaintiff’s action, we concluded: [T]here is a commonality of purpose between the Iowa Blue Sky statute and Rule 10b-5. In Vanderboom v. Sexton, supra, at 1237, this court’s decision to apply the period of limitations specified in the Arkansas Blue Sky Law was motivated by the fact that the Blue Sky statute, like Rule 10b-5, “deals expressly with the sale of securities.” As to the second prong of the Vanderboom case, it is necessary to examine what defenses are allowed in the state cause of action relied upon by the various parties as establishing the appropriate statute of limitations. If there is a manifest minimization of assertible defenses available in a particular state cause of action which is analogous to Rule 10b-5, the statute of limitations for that cause of action should be applied since it would more closely approximate the federal policy and proof requirements of Rule 10b-5. This inquiry and conclusion are compelled because this court has held that scienter need not be proved in a Rule 10b-5 case to establish liability. Myzel v. Fields, 386 F.2d 718, 734-35 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1043 (1968). (Emphasis added.) Id. at 373. A" }, { "docid": "17094495", "title": "", "text": "is incorporated in the United States as is Northrup, King. Facilities of interstate commerce were also used to transmit the proceeds and to transport POI corporate representatives to Australia for the closing and then back to California. In our view, defendants’ conduct was significant and not “merely preparatory.” Even though the ultimate effect, that is, Continental’s purchase of PacSeeds, was felt in Australia, the fraudulent scheme of nondisclosure was devised and completed in the United States. Then it was “exported” to Australia. “We do not think Congress intended to allow the United States to be used as a base for manufacturing fraudulent security devices for export, even when these are peddled only to foreigners.” IIT v. Vencap, Ltd., supra, 519 F.2d at 1017. Unlike those transnational securities cases in which materials, e. g., Bersch v. Drexel Firestone, Inc., supra, 519 F.2d at 979-80, or advertisements, e. g., United States v. Cook, supra, 573 F.2d at 232, were sent abroad, the present case involves nondisclosure rather than misrepresentation. It is well-settled, however, that § 10b prohibits nondisclosure as well as affirmative misrepresentation of material facts affecting a security. E. g., Arber v. Essex Wire Corp., 490 F.2d 414, 418 (6th Cir. 1974), citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968). Further, our finding that defendants’ conduct in the United States, consisting in part of the use of the mails and instrumentalities of interstate commerce, in furtherance of the fraudulent scheme was significant and thus provides a jurisdictional basis for Continental’s action is consistent with the position of the courts in wholly domestic securities fraud cases. E. g., Kerbs v. Fall River Industries, Inc., 502 F.2d 731, 737 (10th Cir. 1974); Myzel v. Fields, 386 F.2d 718, 727-28 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968). In sum, where defendants’ conduct in the United States was in furtherance of a fraudulent scheme and was significant with respect to its accomplishment, and moreover necessarily involved the use of the mails and other instrumentalities of interstate commerce, see SEC v. Gulf Intercontinental" }, { "docid": "2504339", "title": "", "text": "now move for an order of summary judgment on each of the five counts and raise numerous arguments in support. The court will address the arguments in a logical sequence. I Federal Securities Law Claims A. Jurisdictional Requirements of Section 10(b) The defendants preliminarily argue that no evidence exists to establish that the defendants used any means or instrumentality of interstate commerce in connection with the purchase of McLaury’s stock. In support of this argument, the defendants point out that the conversations Hansen had with McLaury relating to that purchase all took place in person at the offices of Duff and Phelps, see PX 6, or over interoffice phone lines separate and distinct from the phone lines used to make outside calls. See Hansen Affidavit (September 17, 1986) (attached to the Defendants’ Reply Memorandum). Moreover, McLaury signed over his shares in person at the Duff and Phelps offices and was paid in person by check. See PX 6. Section 10(b) and Rule 10b-5 make it unlawful to engage in certain fraudulent activity in connection with the purchase or sale of a security only if done “by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange.” 15 U.S.C. § 78j(b). It is not necessary that the fraud be committed during and through the actual use of the jurisdictional means; to be a violation of Section 10(b) and Rule 10b-5 it is sufficient if the jurisdictional means are used in connection with a fraudulent scheme. Gower v. Cohn, 643 F.2d 1146, 1152 (5th Cir.1981); Boone v. Baugh, 308 F.2d 711, 713 (8th Cir.1962); Errion v. Connell, 236 F.2d 447, 455 (9th Cir.1956); Miller v. Affiliated Fin. Corp., 600 F.Supp. 987, 992 (N.D.Ill.1984) (Shadur, J.). Although the aforementioned standard routinely is satisfied in securities eases such as this, in unusual circumstances courts have dismissed Section 10(b) claims for failing to satisfy the standard. See, e.g., Boone, 308 F.2d at 714. The burden is on McLaury to establish jurisdiction. See id. at 713. The court agrees with McLaury that the" }, { "docid": "23445281", "title": "", "text": "argument advanced by appellant is that the district court lacked jurisdiction over the subject matter of this lawsuit for the reason that the evidence wholly fails to establish any of the elements required to make out a case under 15 U.S.C.A. § 78j and Rule X-10B-5. It is, of course, the law that the burden is upon the plaintiff to establish jurisdiction, and coincidentally make out a case under the statute and rule,- and to do so he must prove: (1) Usejj of the mails or instrumentalities of in-ji terstate commerce; (2) the purchase or sale of a security; and (3) the use of a manipulative or deceptive device, s Boone v. Baugh, 8 Cir., 308 F.2d 711. j We shall take these elements up in the order presented. It will be observed that neither the statute nor the rule requires that the manipulative or deceptive device or contrivance be a part of or actually transmitted in the mails or instrumentality of interstate commerce. All that is required is that such a device or contrivance be used or employed in connections with the use of the instruments of interstate commerce or the mails. Ellis v. Carter, 9 Cir., 291 F.2d 270; Matheson v. Armbrust, 9 Cir., 284 F.2d 670, cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860; Errion v. Connell, 9 Cir., 236 F.2d 447; Fratt v. Robinson, 9 Cir., 203 F.2d 627, 37 A.L.R.2d 636; Boone v. Baugh, supra. We have no hesitancy in holding that both the mails and instrumentalities of interstate commerce were used in this case. As we have seen, the mails were used by appellant to introduce Vowell to the officials of Worldwide. Vowell then traveled in interstate commerce from Utah to Washington and back and thereafter negotiated his cheek for the final payment in connection with his investment which entered the stream of interstate commerce in going from Utah to Washington and returned through interstate banking channels. In addition, the 10 per cent commission was paid to Stevens and Moad and such payments originated at Worldwide’s offices in Seattle and terminated" }, { "docid": "13340502", "title": "", "text": "is successful in proving (1) the use of the mails or instrumental-ities of interstate commerce; (2) the purchase or sale of a security; and (3) the use of a manipulative or deceptive device. Stevens v. Vowell, supra,, 343 F.2d at 378; Boone v. Baugh, 308 F.2d 711, 713 (8th Cir. 1962). The issues relative to the establishment of these required elements of plaintiff’s cause are considered in turn. The first argument advanced by defendants is, in effect, that the court lacked jurisdiction over the subject matter of this action. To meet the jurisdictional requirements of § 10 of the Act and Rule 10b — 5 the manipulative or deceptive device or contrivance must be shown to have been accomplished by the use of some means or instrumentality of interstate commerce or of the mails, or of some facility of any national securities exchange. It is not required by the statute or the rule that the manipulative or deceptive device or contrivance be a part of or actually transmitted in the mails or instrumentality of interstate commerce; it is sufficient that such a device or contrivance be employed in connection with the use of the instruments of interstate commerce or the mails. Stevens v. Vowell, supra, 343 F.2d at 378-379; Ellis v. Carter, 291 F.2d 270, 274 (9th Cir. 1961); Boone v. Baugh, supra, 308 F.2d at 714. We have seen from the evidence adduced at trial that at least one of the meetings between Kerbs and Thompson — at which the scheme to defraud plaintiff was carried out — was arranged during the course of a telephone conversation between Kerbs and Dial. Defendants would have us hold that the required nexus between the manipulative device or contrivance and the use of an instrumentality of interstate commerce has not been established, because neither Thompson nor Fall River Industries were themselves party to these telephone communications. Defendants’ argument is unconvincing. It is evident that throughout the course of their dealings with plaintiff, and in the implementation of their scheme to defraud him, Dial and Thompson acted for and on behalf of each" }, { "docid": "15561895", "title": "", "text": "L.Ed. 417, is not questioned by any party herein. We are here concerned only with the scope of the “sale transaction.” Here the evidence is without dispute that, except for the acts which might be attributable to both defendants (occurring at least a year after May 1, 1963), the transaction premising any cause of action for violation of the Securities Acts was completed before defendant CAPITAL had any actual or imputed capacity to perform any act, legal or illegal. Courts, facing the problem of the scope of a sale transaction have uni-formally held that when a seller in State S delivers a security to a buyer in State B, who sends or delivers a check to the seller in State S, the sale takes place in State B. 3 Loss, Security Regulations 2008. There can be no violation of the Securities Act unless three acts co-exist in relation to the transaction: (1) use of the mail or other instrumentality of interstate commerce; (2) purchase or sale of a security; and (3) use of a manipulative or deceptive device. In Boone v. Baugh (1962) 8 Cir., 308 F.2d 711 at 714, the court states the principle which must be applied to the transaction presented herein when it says: “The court was also fully justified in finding that the alleged fraudulent sale of securities was completed before the mail or commerce transactions disclosed by the evidence came into operation and that the use of the mails or commerce in no way contributed to the sale of the securities here involved, or the cancellation of the purchase price of such securities.” See also Hooper v. Mountain State Securities (1960) 282 F.2d 195 cert. denied 265 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. Assuming, arguendo, that “the district courts of the United States” have jurisdiction in the sense of the “power to adjudicate.” The venue provisions of either 15 U.S.C.A. § 77v or 15 U.S.C.A. § 78aa give no vitality to the position of plaintiff insofar as it regards the Central District of California as the proper district within which to commence its" }, { "docid": "11655106", "title": "", "text": "previously adopted a rule applying Rule 10b-5 to “negligent as well as intentional misrepresentations.” See Myzel v. Fields, 386 F.2d 718, 734-35 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968). Thus, proof of scienter was not an element of recovery in a 10b-5 action. The Court then determined that an action under the Arkansas Securities Act similarly lacked a scienter requirement; recovery for Arkansas fraud, however, required proof of scienter. To the Court, this comparison revealed a similar lack of defenses which rendered a 10b-5 action more like an Arkansas blue sky action than an Arkansas fraud suit. The Court also noted that the state and federal securities actions shared a “commonality of purpose;” both dealt “expressly with the sale of securities.” Un der these dual criteria, the Court applied the two-year limitations statute of the Arkansas Securities Act to the pending 10b-5 action, rather than the three-year period for Arkansas fraud actions. At the time of its decision, the Vanderboom court noted that, to the best of its knowledge, no prior federal court had “applied a short blue-sky statute of limitations” to a 10b-5 case. 422 F.2d at 1237. Since that case, however, a number of courts have used Vanderboom’s resemblance analysis, and reached a similar result. See, e.g., Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974); Maine v. Leonard, 353 F.Supp. 968 (W.D.Va.1973). Thus, it is quite clear to this Court that the Vánderboom approach has gained a notable following, and certainly must be adhered to in this case. The parties to this litigation do not directly challenge the propriety of this Court’s applying the Vanderboom test. Rather, they quarrel over the result which an application of that test will yield. In a nutshell, plaintiffs contend that actions for fraud in Iowa more closely resemble 10fo-5 actions than do actions under the Iowa Securities Act. Thus, they assert that the five-year limitations period § 614.1(4) of the Code of Iowa (1973), should apply here. Defendants" }, { "docid": "2498139", "title": "", "text": "enforce the Stock Purchase Agreement held in December, 1977; that Dane T. Scag, as principal executive officer of Wisconsin Marine, Inc. did not disclose to Thomas M. Trecker as a stockholder and a member of the Board of Directors of the existence of such negotiations; that Dane T. Scag and Wisconsin Marine, Inc. had an affirmative obligation to disclose the existence and nature of the negotiations with Ransomes, Sims and Jefferies, Ltd. as soon as they commenced. That had such negotiations been disclosed, Trecker would have deferred his demand for redemption of his stock under the Stock Purchase Agreement, a fact known and fully understood by the defendants; that the failure to disclose these negotiations was done with intent to defraud Trecker of the reasonable value of his stock; that the defendant, Ransomes, Sims and Jefferies, Ltd. knew or should have know that the 34.2% interest of Trecker in Wisconsin Marine, Inc. it was acquiring was being sold in violation of law.” The second charge is that WMI made a knowing misrepresentation of material fact in advising the court that Trecker’s interest had been sold for $124,176; the complaint alleges that, according to Ransomes’ annual report, Ransomes paid $646,697 for Trecker’s 34% interest. For these alleged violations, the complaint seeks the difference between the amount the plaintiff received when the corporation redeemed his shares and his pro rata share of the proceeds of the sale to Ransomes. I. JURISDICTIONAL MOTIONS • The subject matter jurisdiction of a district court over an action arising under 15 U.S.C. § 78j(b) and Rule 10b-5 is predicated on the use by the defendants of the mails or other instrumentalities of interstate commerce in connection with the purchase or sale of securities. See, e. g., Kerbs v. Fall River Industries, Inc., 502 F.2d 731, 737 (10th Cir. 1974); Boone v. Baugh, 308 F.2d 711, 713 (8th Cir. 1962). Since the defendants have controverted the complaint’s formal allegation regarding use of these jurisdictional means, the court must determine from the affidavits and other evidentiary materials submitted by the parties whether the plaintiff has met his burden" }, { "docid": "23445280", "title": "", "text": "Aschkar & Company v. Curtis, 9 Cir., 327 F.2d 306. It is also urged that the trial court did not have jurisdiction because the complaint failed to allege and the evidence did not establish that “any aet or transaction constituting the violation occurred” within the District of Utah. We do not agree. The evidence clearly shows that the initial contact with Vow-ell was made at his residence in Murray, Utah. Numerous conversations, all of which were integral parts of the transaction, took place in Utah and the letter of introduction to the officials of Worldwide was written, signed and mailed by Stevens in Utah. If that is not enough, the evidence also shows that the check from Vowell by which he made the payment due on the promissory note was executed by him after he returned to Utah and the so-called “Letter of Intent” was issued and delivered to Vowell in Utah. It would be strange indeed to conclude from these facts that no “act or transaction” occurred in the District of Utah. The principal argument advanced by appellant is that the district court lacked jurisdiction over the subject matter of this lawsuit for the reason that the evidence wholly fails to establish any of the elements required to make out a case under 15 U.S.C.A. § 78j and Rule X-10B-5. It is, of course, the law that the burden is upon the plaintiff to establish jurisdiction, and coincidentally make out a case under the statute and rule,- and to do so he must prove: (1) Usejj of the mails or instrumentalities of in-ji terstate commerce; (2) the purchase or sale of a security; and (3) the use of a manipulative or deceptive device, s Boone v. Baugh, 8 Cir., 308 F.2d 711. j We shall take these elements up in the order presented. It will be observed that neither the statute nor the rule requires that the manipulative or deceptive device or contrivance be a part of or actually transmitted in the mails or instrumentality of interstate commerce. All that is required is that such a device or contrivance" }, { "docid": "13954800", "title": "", "text": "that are in furtherance of a fraudulent scheme.” In SEC v. Timetrust, Inc., D.C.Cal.1939, 28 F.Supp. 34, 40, the court held that “by the use of the mails” or “any means or instruments of transportation or communication in interstate commerce” could each separately give rise to charges of statutory violation, and said “ * * * It clearly shows that Congress intended that the provisions of the Act should apply to both interstate and intrastate transactions.” The court is of the opinion no limitation to interstate business is here applicable. With respect to the argument that there was no misrepresentation in writing which was sent through the mails by defendant, paragraph 8 of the complaint alleges: “In negotiating and consummating the purchase of said 290.2843 shares of stock pursuant to the agreement of October 20, 1945 (Exhibit X), and carrying out the corporate action and other steps required under the terms of said contract, defendants used or caused to be used the means and instrumentalities of interstate commerce and the United States mails contrary to the statute and rules herein-above referred to.” Defendants urge that no misrepresentation or misstatements could constitute a fraud after the execution of the agreement of October 20, 1945; the alleged fraud either occurred at or prior to the time of execution of the agreement of October 20, 1945, which matters constituting the fraud were submitted in writing by defendants to plaintiffs through the United States mail, or were submitted orally by defendants to plaintiffs by use of instrumentalities of interstate commerce; otherwise no fraud occurred; that therefore this court has no jurisdiction in that the alleged fraud, if any, was completed and there was no use of the mails or instrumentalities of commerce in the making of the alleged fraud. Plaintiffs urge that it is sufficient under the language of Section 10(b) and Rule X-10B-5 if the mails or facilities of interstate commerce are used in connection with the purchase or sale and that it is not necessary that the misleading statements be communicated by the use of these instrumentalities. Both litigants refer to sections" }, { "docid": "22449504", "title": "", "text": "upon interstate commerce to warrant extraterritorial application of the Exchange Act. The present question is not whether this limited use of the mails and the facilities of interstate commerce would be a sufficient basis for subject matter jurisdiction over a foreign transaction which would otherwise be exempt from the Act, see Kook v. Crang, supra, but whether, once it has been determined that the Act applies to a particular foreign transaction, there is a use of the mails or interstate commerce sufficient to meet the requirement of § 10(b). We find that defendant’s affidavits show a use of interstate commerce or the mails sufficient to bring both transactions within the scope of Section 10(b). Since defendants admit that the Aquitaine purchase was delayed pending the successful conclusion of negotiations with the Treasury Department regarding tax rulings and negotiations with the American Stock Exchange regarding the listing of the additional shares, we find, on this record, that these negotiations were a part of the scheme for the sale of treasury stock to Aquitaine. And since it appears that, as plaintiff alleges, these negotiations with United States government and stock exchange officials must have made some use of the mails or other facilities of interstate commerce, there was at the very least use of interstate commerce or the mails sufficient to bring the sales transactions within the scope of Section 10(b). Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). The Paribas transaction likewise involved negotiations which must have taken place in part in the United States or made some use of the mails or interstate commerce. Furthermore, the purchase agreement was mailed from Paribas in New York to Banff in Canada ; this in itself would establish a use of the mails sufficient to meet the requirement of Section 10. Rule 10b-5 Plaintiff’s theory of its cause of action is that “Banff was defrauded by its directors and controlling shareholder who combined to force it to sell treasury shares at the prevailing market price when" }, { "docid": "6226874", "title": "", "text": "requirements of Section 10(b). The court held, “It is the character of the instrument used rather than the nature of the call, which determines.” Id. at 63. In Nemitz v. Cunny, 221 F.Supp. 571 (N.D.Ill.1963), it was held that even where no misrepresentations were made over the telephone its use in arranging a meeting which furthered the fraudulent scheme was the indirect use of an instrumentality of interstate commerce within the meaning of Rule 10b-5. The court also held that the 1934 Act applies to a case involving clearly intrastate transactions in the stock of a closed corporation incorporated in the state where the fraudulent transactions took place. The Eighth Circuit reached the same conclusion in Myzel v. Fields, 386 F.2d 718 (1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968), in which Nemitz v. Cunny, supra, was cited. On the other hand, in a brief per curiam opinion containing no statement of facts the Ninth Circuit found that there was “no use of an ‘instrumentality of interstate commerce’ within the contemplation of the statute by reason of two local telephone calls to the companies’ counsel who was also an assistant secretary.” Burke v. Triple A Machine Shop, Inc., 438 F.2d 978, 979 (1971). It is significant that both the statute and the rule speak in terms of an “instrumentality of interstate commerce” (emphasis added) rather than an instrumentality in interstate commerce. It is settled that Congress may regulate intrastate activities which have an appreciable effect on interstate commerce. United States v. Wrightwood Dairy Company, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Lloyd v. United Liquors Corp., 203 F.2d 789, 796-797 (6th Cir. 1953). Thus, our interpretation of congressional- intent in enacting Section 10(b) is not vulnerable to the claim of the appellees that regulation of such activities would exceed the power of Congress under the Commerce Clause. Although discussion by the parties is directed exclusively to the intrastate telephone calls, we note that the mails were used to" }, { "docid": "14219623", "title": "", "text": "regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” Rule X-10B-5 goes no further than to carry out the statutory authority granted the Commission to designate more specifically the type of manipulative device that shall fall within the statutory prohibition. Three separate acts are designated in § 10(b), to wit: 1. Use of mails or instrumentalities of interstate commerce. 2. Purchase or sale of a security. 3. Use of a manipulative or deceptive device. There can be no violation of the statute unless all three acts are proven and a proper relationship among these acts is shown. The Fratt and Errion cases must be considered in the light of the opinions as a whole and their factual context. Our examination of these cases shows that they were decided upon the basis of a finding that the use of the mail and the fraudulent act bore a direct relationship to the purchase or sale of securities. In Fratt, although the use of the mails took place subsequent to the face-to-face fraud, the mails were used to consummate the security transaction by directing payment of the purchase price. In Errion, the court found the complex scheme to be a single, fraudulent transaction and that instrumentalities of commerce were used in the fraudulent operation. We agree with the holding in Fratt and Errion that it is not a prerequi site, to recovery that the mails or commerce be used to transmit the fraudulent representation. We so held in considering a closely related case involving §§12 (2) and 17(a) of the Securities Act of 1933, 15 U.S.C.A. §§ 771(2), 77q(a). Creswell-Keith, Inc. v. Willingham, 8 Cir., 264 F.2d 76. We there said: “The courts have uniformly held that this statute applies when the mails are used in furtherance of a fraudulent scheme, irrespective of whether the misrepresentations were transmitted by mail or in interstate commerce.” 264 F.2d 80. The trial court in its opinion analyzes the evidence pertaining to the use of mails and commerce instrumentalities, and finds that the mails and commerce" }, { "docid": "13340501", "title": "", "text": "us to link the transfer company to the course of dealings between plaintiff and Dial, Thompson and Fall River Industries. The trial court’s finding that Securities Transfer engaged in acts which operated as a fraud or deceit upon plaintiff, in connection with the purchase or sale of a security, is clearly in error. Defendants next assert that the evidence adduced at trial failed to establish the elements required to make out a case under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. It is now well established that a violation of the provisions of § 10 (b) gives rise to a private cause of action. See Superintendent of Insurance of New York v. Bankers Life & Casualty Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169, 30 L.Ed.2d 128, 134 (1971); Crist v. United Underwriters, Ltd., 343 F.2d 902, 903 (10th Cir. 1965); 6 L. Loss, Securities Regulation 3869-3873 (1969). Jurisdiction will be established, and a case will be made out under the statute and the rule, if plaintiff is successful in proving (1) the use of the mails or instrumental-ities of interstate commerce; (2) the purchase or sale of a security; and (3) the use of a manipulative or deceptive device. Stevens v. Vowell, supra,, 343 F.2d at 378; Boone v. Baugh, 308 F.2d 711, 713 (8th Cir. 1962). The issues relative to the establishment of these required elements of plaintiff’s cause are considered in turn. The first argument advanced by defendants is, in effect, that the court lacked jurisdiction over the subject matter of this action. To meet the jurisdictional requirements of § 10 of the Act and Rule 10b — 5 the manipulative or deceptive device or contrivance must be shown to have been accomplished by the use of some means or instrumentality of interstate commerce or of the mails, or of some facility of any national securities exchange. It is not required by the statute or the rule that the manipulative or deceptive device or contrivance be a part of or actually transmitted in the mails or instrumentality of interstate" }, { "docid": "165370", "title": "", "text": "1970). The federal courts have given weight to the same factors as the Washington courts. deHaas v. Empire Petroleum Co., 435 F.2d 1223, 1226 (10th Cir. 1970); Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 9 (5th Cir. 1967). See section I.C.l. supra. Accordingly, the district court could not properly direct a verdict that Hiltons’ claims are barred by the statute of limitations. 2. The Merits a. Misrepresentations as to market value and failure to disclose purchase inquiries Mumaws first argue that Hiltons have failed to show that the allegedly fraudulent acts involved “the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange in connection with the purchase or sale of any security.” SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. We cannot agree. A draft of the 1957 contract was mailed by Cohassett’s attorney to Henry Mumaw. The jurisdictional requirement of Rule 10b-5 is satisfied even if the use of the mails is not itself a fraudulent act. It suffices if Mumaws used the mails in furtherance of the alleged fraud. Errion v. Connell, 236 F.2d 447, 450, 454-55 (9th Cir. 1956); Boone v. Baugh, 308 F.2d 711, 713-14 (8th Cir. 1962). From the fact that the draft was mailed with a covering letter to Henry Mumaw, it may reasonably be inferred that the draft was prepared at his request. Preparation of the draft was clearly in furtherance of the allegedly fraudulent scheme. We conclude that the use of the mails by Cohassett’s attorney satisfies the jurisdictional requirement of Rule 10b-5. We need not discuss at length the other elements of a Rule 10b-5 claim, since the extent of the duty imposed by that rule is not put in issue by Mumaws’ motion for directed verdict at the close of Hiltons’ case-in-chief. Although the district court must eventually formulate jury instructions that specify the duty owed by defendants under the different facts that may reasonably be found by the jury, White v. Abrams, 495 F.2d 724, 734-36 (9th Cir. 1974), it need not consider the duty imposed" }, { "docid": "3423821", "title": "", "text": "limitation period applicable, rather than the fraud limitation, because of the resemblance in language and purpose between rule 10b-5 and the blue sky laws. Likewise, other courts have reached a similar conclusion. See, e. g., Vanderboom v. Sexton, 422 F.2d 1233 ( 8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Josef’s of Palm Beach, Inc. v. Southern Investment Co., 349 F.Supp. 1057 (S.D.Fla.1972); Richardson v. Salinas, 336 F.Supp. 997 (S.D.Tex.1972). But see United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). The “resemblance test” was adopted by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974). Hudak involved a claim against a registered broker/dealer under section 10(b) of the Securities Exchange Act. The district court measured the timeliness of plaintiff’s suit against the three-year period provided by Florida statutes in “action [s] for relief on the ground of fraud.” Fla.Stat. § 95.11(5). On appeal, defendants argued that the two-year limitation period provided in the state’s blue sky law “more nearly embodies the policies behind section 10(b).” 499 F.2d at 999. Noting the similarity between the Florida and federal scheme in regulating securities, the district court was held to have erred in applying the three-year fraud period. Relying on the decisions from the Seventh and Eighth Circuits, the court found the similarity between Florida’s blue sky law and 10b-5’s language and scienter requirements crucial to its determination. Moreover, the court placed major emphasis on the congruence between the specific remedy sought—return of the purchase money —and the remedy of rescission provided by the Florida blue sky law. Section 10(b) provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or" }, { "docid": "8757105", "title": "", "text": "10(b)-5, 17 C.F.R. § 240.10(b)-5 (1976), do not suffer from the same defect. Rule 10(b)-5 provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) to employ any device, scheme or artifice to defraud, (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. The Federal Courts have long held that a violation of this Rule gives rise to an implied civil right of action. Kardon v. National Gypsum, 69 F.Supp. 512 (E.D.Pa.1946). Despite a more narrow construction in recent years, e. g., Blue Chip Stamps v. Manor Drug Co., 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), Rule 10b-5 is a formidable weapon in policing securities transactions. The Rule’s basic requirement is still full and fair disclosure. Santa Fe Industries v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977). Thus allegations that officers of Falstaff mislead Kalmanovitz state a violation by them and by Falstaff. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). The allegations of scienter, Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed. 668 (1976), and reliance, Affiliated Ute Citizens, supra, 406 U.S. at 153, 92 S.Ct. 1456, are sufficient. Finally, contrary to defendants’ argument, the allegation that the stock purchased was worth less than was paid for it is a proper claim of damages. Myzel v. Fields, 386 F.2d 718, 748 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968). Having decided that a primary violation of Rule 10b-5 has been" }, { "docid": "2498140", "title": "", "text": "in advising the court that Trecker’s interest had been sold for $124,176; the complaint alleges that, according to Ransomes’ annual report, Ransomes paid $646,697 for Trecker’s 34% interest. For these alleged violations, the complaint seeks the difference between the amount the plaintiff received when the corporation redeemed his shares and his pro rata share of the proceeds of the sale to Ransomes. I. JURISDICTIONAL MOTIONS • The subject matter jurisdiction of a district court over an action arising under 15 U.S.C. § 78j(b) and Rule 10b-5 is predicated on the use by the defendants of the mails or other instrumentalities of interstate commerce in connection with the purchase or sale of securities. See, e. g., Kerbs v. Fall River Industries, Inc., 502 F.2d 731, 737 (10th Cir. 1974); Boone v. Baugh, 308 F.2d 711, 713 (8th Cir. 1962). Since the defendants have controverted the complaint’s formal allegation regarding use of these jurisdictional means, the court must determine from the affidavits and other evidentiary materials submitted by the parties whether the plaintiff has met his burden of establishing the existence of subject matter jurisdiction. See 5 Wright & Miller, Federal Practice and Procedure § 1350, at 549-50, 555. The present record clearly indicates that the jurisdictional requirement has been satisfied. Between December 20, 1977, and June 12,1978, the defendant Scag and officials at Ransomes exchanged no less than eight letters covering matters pertinent to the acquisition by Ransomes of WMI stock. It is not required that the manipulative or deceptive device be communicated in the mailed materials, as long as such a device is employed in connection with the use of the mails or of the instruments of interstate commerce. Kerbs, supra, 502 F.2d at 737. In these circumstances, I find that the plaintiff has met his burden and that the court therefore has subject matter jurisdiction over this action. The plaintiff has also satisfied his burden of showing the existence of jurisdiction over the person of Ransomes, a British corporation. The test established by the Supreme Court for determining whether a court may, consistent with due process, require a nonresident" } ]

[ { "docid": "22674051", "title": "", "text": "not have cause to withdraw his pleas; and (4) failing to establish a factual basis for his guilty pleas. Finally, Martinez contests his convictions and sentence on the basis that Apprendi rendered 21 U.S.C. § 841, the substantive statute forming the object of the Count One conspiracy, unconstitutional. We possess jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. II. Before we address the merits of Martinez’s contentions, we must consider a predicate procedural issue concerning the applicable standard of review. Because Martinez did not seek to withdraw his guilty plea in the district court, we review his alleged Rule 11 errors under the standard applicable to forfeited error, i.e., assertions of error raised for the first time on appeal. The courts addressing this question disagree over whether such assertions are to be reviewed under a plain error standard or a harmless error standard. This question is one of first impression in our circuit, and we must resolve the question before we consider the substance of Martinez’s Rule 11 claims. As a general proposition, of course, it is well established that forfeited error is reviewed under a plain error standard. See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial lights may be noticed although they were not brought to the attention of the court.”); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain error review, we may notice an error that was not preserved by timely objection only if the defendant can demonstrate (1) that an error occurred, (2) that it was plain error, and (3) that the error was material or affected the defendant’s substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even when these three conditions are satisfied, we retain discretion whether to correct the error, which we should exercise only if the “error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. Under the provisions of Rule 11(h), errors in plea proceedings are normally evaluated under a harmless error standard. Fed.R.Crim.P. 11(h) (“Any variance from the procedures required by this rule which does" } ]

[ { "docid": "23180842", "title": "", "text": "v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). The burden is upon the defendant to demonstrate that the error affected his substantial rights. See United States v. Minore, 292 F.3d 1109, 1118 (9th Cir.2002); Olano, 507 U.S. at 734, 113 S.Ct. 1770. Only after a defendant satisfies this “heavy burden” does the reviewing court consider whether to exercise its discretion to notice the forfeited error because it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” See United States v. Sager, 227 F.3d 1138, 1145 (9th Cir.2000) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alterations and internal quotation marks omitted). 1. “Error” which is “plain” The Court in Olano advised that any deviation from a legal rule is an “error” and that “plain” is synonymous with clear or obvious. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770. In this- case, there is no dispute that the district court’s failure to inquire specifically about prior discussions between the government and Jimenez or his attorney deviated from Federal Rule 11(d). That rule provides, The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to luhether the defendant’s willingness to plead guilty or nolo con-tendere results from prior discussions between the attorney for the government and the defendant or the defendant’s attorney. Fed.R.Crim.P. 11(d) (emphasis added). Moreover, the court’s failure to conform to the rule was salient given the Rule’s express provisions requiring such an inquiry. Thus, the question presented is whether Jimenez can establish that the omission affected his substantial rights. 2. Substantial Right In order for an error to affect a substantial right, it must be prejudicial, i.e., the error “must have affected the outcome of the district court" }, { "docid": "12167103", "title": "", "text": "11(d)(2)(B). Had he done so, he would have had to show only a “fair and just reason for withdrawal.” Id.; see also, e.g., United States v. Newbert, 504 F.3d 180, 183-84 (1st Cir.2007) (affirming decision of trial court not to enforce waiver of rights where defendant had been permitted to withdraw his plea under Rule 11(d)(2)(B)). Having raised the omission for the first time on appeal, Borrero faces a much tougher standard. Borrero argues that the magistrate judge’s failure to ask him specifically about the waiver of appeal means that he is not bound by this waiver. Not so. Borrero’s primary argument is that it would be unjust to hold him to the waiver of appeal because this would block him from making his argument on the merits, which is that insufficient attention was paid to whether his plea was voluntary given that it was part of a package deal and he might have been coerced into pleading guilty by a co-defendant. II. Vonn resolved a circuit split on the standard for evaluating Rule 11 errors. It held that a defendant who has not preserved his claim of Rule 11 error and wishes to be relieved of his guilty plea on appeal must satisfy the plain error standard of Fed.R.Crim.P. 52(b). Vonn, 535 U.S. at 58-59, 122 S.Ct. 1043. In order to show plain error, a defendant must demonstrate that there is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alterations in original). As we noted in United States v. Mescual-Cruz, 387 F.3d 1 (1st Cir.2004), the decision in Vonn also clarified two areas as to application of the plain error rule to Rule 11 errors. First, the" }, { "docid": "15364893", "title": "", "text": "at 1166. Beck did not, however, address the alleged error in the context of Rule 11(b)(3) and the colloquy designed to ensure a knowing and voluntary plea. And notwithstanding the statements about “waiver” of a challenge to the factual basis, the court ultimately concluded that there was “no plain error” in the district court’s acceptance of the guilty plea, id. at 1167, thus sending arguably mixed signals about the availability of appellate review. We think the earlier decision in Marks, augmented by the plain-error analysis of the Supreme Court in Vonn and Dominguez Benitez, indicates the correct approach. Accord Garcia, 587 F.3d at 520-21; United States v. Arenal, 500 F.3d 634, 637 (7th Cir.2007); United States v. Caraballo-Rodriguez, 480 F.3d 62, 69-70 (1st Cir.2007); United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.2007); United States v. Castro-Trevino, 464 F.3d 536, 540-41 (5th Cir.2006); United States v. Martinez, 277 F.3d 517, 531-32 (4th Cir.2002). Frook did not object to the district court’s determination that there was an adequate factual basis, so we review only for plain error. To obtain relief on plain error review, Frook must show that the district court committed an error that was obvious and that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A defendant asserting a Rule 11 violation satisfies the substantial-rights prong of the inquiry if he demonstrates “a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333. If the first three criteria are met, then this court should correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation omitted). Rule 11(b)(3) requires that, “[bjefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This provision is “satisfied by the existence of sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the" }, { "docid": "10828476", "title": "", "text": "States v. Abbott, 241 F.3d 29, 33 (1st Cir.2001). Here, the defendants do not get the benefit of an abuse of discretion standard of review, because they did not raise the issue of the package nature of the deal before the district court. Accordingly, the review is for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). An unobjeeted-to error in the Rule 11 colloquy is reversible error only upon a showing of plain error. Id. at 63, 122 S.Ct. 1043. Since the Supreme Court’s decision in 2002 in Vonn, the defendant’s failure to raise the objection in the trial court has two consequences. First, it is defendant’s burden to satisfy the plain error rule. It is not the government’s burden to show any error was harmless. Second, the reviewing court may consider the entire record when assessing the effect of any error on substantial rights. Id. at 74. To satisfy its burden, the defendant must show four things: 1) an error occurred, 2) the error was clear or obvious, 3) it affected the defendant’s substantial rights, and 4) it seriously impaired the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Gandia-Maysonet, 227 F.3d 1, 5 (1st Cir.2000). There is no contention that the court’s Rule 11 inquiry was insufficient save for these being package pleas. In package plea arrangements, the prosecutor offers a benefit or detriment to all (the defendant and third parties) in order to persuade the entire group of defendants to plead guilty. These types of arrangements are not per se involuntary. Still, package plea deals raise at least two types of risks. The first is that a defendant is coerced by co-defendants to plead guilty involuntarily. One defendant may be coerced into pleading guilty by a co-defendant who believes he is getting a good deal under the package deal. United States v. Martinez-Molina, 64 F.3d 719, 732-33 (1st Cir.1995). The second is that there may be a family relationship between" }, { "docid": "22808225", "title": "", "text": "11 before accepting their guilty pleas because it did not address drug quantity, which they believe Apprendi converted into an element of their offense. The second aspect of their argument is that Apprendi vitiated the voluntariness of their guilty pleas by reducing the legally permissible maximum penalty they faced for their drug offense. More specifically, they aver that their guilty pleas were induced by the threat of a harsher punishment—up to forty years or life imprisonment—than was possible given Apprendi, under which they faced a maximum penalty of only twenty years’ imprisonment under § 841(b)(1)(C). 1. Standard of Review The Sanchezes raise the Apprendi issues concerning their guilty pleas for the first time on appeal. This Court has held “that a defendant who has not presented his objection to the district court—for example, through a motion to withdraw the plea—must show plain error on direct appeal.” United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Thus, the San- chezes must show that there is (1) “error,” (2) “that is ‘plain/ ” and (3) “that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (other internal quotation marks omitted). 2. Rule 11 The Sanchezes claim that the district court failed to comply with the requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that “[b]efore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,” certain matters. Fed. R.Crim.P. 11(c). At issue in this case are the requirements in Rule 11 that the court properly advise the defendant of “the nature of the charge to which" }, { "docid": "19793252", "title": "", "text": "record at the time the plea is entered of the factors relevant to this voluntariness determination.” Id. at 657 (quoting McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). So, “the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous ... attacks on the constitutional validity of guilty pleas.” Sura, 511 F.3d at 657-58 (quoting McCarthy, 394 U.S. at 465, 89 S.Ct. 1166). Rule ll(b)(l)(N) specifically requires a sentencing court to review “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence” with the defendant before accepting his guilty plea. Sura, 511 F.3d at 665 (7th Cir.2007) (citing Fed.R.Crim.P. ll(b)(l)(N)). So, here, the district court committed error when it failed to discuss the appellate waiver provision before accepting Polak’s plea. Because Polak failed to object before the end of the colloquy, our examination here is whether this error was plain. Id. at 658. In order for the district court’s error to be plain, we must find that it: (1) affected Polak’s substantial rights; and (2) seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). It is Polak’s burden to demonstrate that the district court’s failure to abide by Rule 11 affected his substantial rights. United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We must look to the totality of the circumstances surrounding the negotiation of the plea agreement and the court’s acceptance of the plea to determine whether the district court’s failure to properly inquire about the appellate waiver during the plea colloquy constitutes plain error. Sura, 511 F.3d at 661. In doing so, the most important question to ask is whether the plea was truly voluntary. Id. In making this evaluation, we may examine evidence outside the Rule 11 colloquy. United States" }, { "docid": "22682630", "title": "", "text": "objection.” We conclude that it was not. Nowhere in his motion to withdraw his plea did Benton claim that the magistrate judge was unauthorized to accept his plea for the purposes of Rule 11. Likewise, nowhere did Benton mention that he should be allowed to withdraw his plea “for any reason or no reason”; instead, Benton specifically states in his motion that “a defendant has no absolute right to withdraw his plea.” Indeed, the entirety of Benton’s motion to withdraw focused on his “fair and just reasons” for doing so. Ultimately, Benton simply did not make the district court aware of any concerns he may have had about the magistrate judge’s authority, and the district court therefore had no reason to address the issue. As a result, the waiver doctrine, which preserves judicial resources and makes certain that appellate courts have well-formed records to review, requires us to consider Benton’s argument waived. See Midgette, 478 F.3d at 622; see also United States v. Ciapponi, 77 F.3d 1247, 1249-50 (10th Cir.1996) (stating that a defendant did not preserve his challenge to a magistrate judge’s authority to conduct a plea colloquy because he raised no objection below). TV. Because Benton did not raise his challenge to the magistrate judge’s authority below, we review his claim for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under that decision, Benton must establish the following three elements to demonstrate plain error: (1) that the defect below was, in fact, error; (2) that the error was “plain;” and (3) that the error affected Benton’s “substantial rights.” Id. at 732, 113 S.Ct. 1770. And even if Benton is able to demonstrate that all three of these elements are present, a court should not exercise its discretionary authority to “correct the forfeited error ... unless [it] seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation omitted). A. To demonstrate “error” for the purposes of plain error review, a defendant must show that “a legal rule was violated during the district court proceedings.” Id." }, { "docid": "22219868", "title": "", "text": "believed that a life sentence (as opposed to a term-of-years sentence) was mandated after the jury did not unanimously recommend a sentence of death. Moussaoui therefore contends that a remand for resentencing is required. See, e.g., United States v. Daiagi, 892 F.2d 31, 33 (4th Cir.1989) (“[T]he defendant should be accorded a right to press his petition for a probationary sentence before a court which has not incorrectly assumed that it absolutely lacks the power to impose such a sentence.”). Because Moussaoui raises this argument for the first time on appeal, we review for plain error only. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005); Fed. R.Crim.P. 52(b). Under plain error review, “we must affirm unless an appellant can show that (1) an error was made, (2) it was plain, and (3) it affected the appellant’s substantial rights.” United States v. Alerre, 430 F.3d 681, 689 (4th Cir.2005). Even if the appel lant makes that showing, “the correction of plain error lies within our discretion, which we do not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). In this case, Moussaoui cannot show that a plain error even occurred. An error is plain if it is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As support for his claim of error, Moussaoui relies on statements made by the district court when accepting Moussaoui’s guilty plea. See, e.g., J.A. 1421 (“You are aware that the first four counts essentially expose you to the possibility of a death sentence or life imprisonment without the possibility of parole?”). The Federal Rules of Criminal Procedure, however, require a district court before accepting a guilty plea to inform the defendant of the maximum sentences he faces. See Fed.R.Crim.P. 11(b)(1)(H) (“Before the court accepts a plea of guilty the court must inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment, fine, and term of supervised release.... ”). When these statements are read in" }, { "docid": "22788657", "title": "", "text": "PER CURIAM: Defendant Henry Affit Lejarde-Rada pled guilty, pursuant to a written plea agreement, to one count of attempted illegal reentry into the United States following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). At sentencing, the district court denied Lejarde-Rada’s motion for a downward departure and sentenced him to 41 months of imprisonment, in addition to three years of supervised release, and a $100 special assessment. On appeal, Lejarde-Rada argues that his guilty plea is invalid because the district court failed to ensure that he understood the direct consequences of his guilty plea. When a district court accepts a guilty plea, it must ensure that the three core concerns of Rule 11 of the Federal Rules of Criminal Procedure have been met: “(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.” United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir.1999) (internal marks omitted); see also United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Because Lejarde-Rada failed to object to any alleged error under Rule 11 before the district court, we review only for plain error, Mosley, 173 F.3d at 1322. Thus, Lejarde-Rada must show that there is (1) “error” (2) that is “plain” and (3) that “affeet[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776) (other internal quotation marks omitted). We have previously said that “[a] district court’s failure to address a core concern of Rule 11 constitutes plain error.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000);" }, { "docid": "22327322", "title": "", "text": "the District Court Committed Plain Error When it Accepted Lessner’s Guilty Plea Lessner argues that the District Court should not have accepted her guilty plea before questioning her on her statements to the Court that she was under the care of mental health professionals and taking “10 pills a day.” (J.A. at 50.) Because no contemporaneous objection was raised, we review the adequacy of the plea colloquy for plain error. Fed R.Crim. P. 52(b); United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Plain error exists only when (1) an error was committed (2) that was plain, and (3) that affected the defendant’s substantial rights. United States v. Stevens, 223 F.3d 239, 242 (3d Cir.2000). Even then, the decision to correct the error is discretionary. United States v. Campbell, 295 F.3d 398, 404 (3d Cir.2002). A court of appeals should exercise its discretion “only if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Stevens, 223 F.3d at 242 (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). By entering a plea of guilty, a criminal defendant waives his or her constitutional rights to be tried by a jury, to confront his or her accusers, and to exercise the privilege against self-incrimination. Parke v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). Like all waivers of constitutional rights, a guilty plea must be made “voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). A district court commits reversible error by accepting a defendant’s guilty plea without creating a record to show that the plea was knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Rule 11 of the Federal Rules of Criminal Procedure sets forth the standards governing the acceptance of guilty pleas. It" }, { "docid": "23700793", "title": "", "text": "appealed the amended judgment, and this Court removed the stay and ordered briefing of the appeal to resume. III. Discussion a. Guilty Plea Rodriguez argues for the first time on appeal that the guilty plea proceedings violated her constitutional rights and failed to comport with the core components of Rule 11. She contends that she was not competent to plead guilty due to mental illness, that her guilty plea was not knowing and voluntary because the district court did not adequately explain her rights or the charges against her, and that there was an insufficient factual basis for her plea. We review for plain error when a defendant, as with Rodriguez, fails to object in the district court to a claimed Rule 11 violation, including a claim that there was an insufficient factual basis for a guilty plea. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); United States v. Franklin, 323 F.3d 1298, 1299 n. 1 (11th Cir.2003). We also find that we should review for plain error when a defendant fails to object to the district court’s determination that she is competent to plead guilty. See United States v. Bennett, 518 Fed.Appx. 660, 663 (11th Cir.2013) (unpublished) (holding that the district court did not commit plain error when it found that the defendant was competent to enter his guilty plea, where the defendant asserted for the first time on appeal that he did not understand the consequences of his guilty plea due to limited mental capacity and paranoia) (citing United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005), for the general rule that errors not raised in the district court are reviewed for plain error). “To establish plain error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). In the Rule 11 context, a defendant who seeks to establish plain error “must show" }, { "docid": "22129760", "title": "", "text": "Federal Rule of Criminal Procedure ll(b)(l)(N). Rule ll(b)(l)(N), as we noted above, mandates that “[bjefore the court accepts a plea of guilty ... the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following: ... (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” 1. In United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), the Supreme Court held that a defendant, who has not objected in the trial court to a Rule 11 error, “has the burden to satisfy the plain-error rule and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights.” Id. at 59, 122 S.Ct. 1043. Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks omitted). In conducting plain error review, it is the “defendant rather than the Government who bears the burden of persuasion with respect to” whether the error affected his substantial rights. Olano, 507 U.S. at 734, 113 S.Ct. 1770. In United States v. Edgar, 348 F.3d 867 (10th Cir.2003), the Tenth Circuit applied Vonn’s plain error standard in reviewing a defendant’s contention that his appellate waiver was unenforceable because his plea colloquy was deficient. The Tenth Circuit noted Rule ll(b)(l)(N)’s requirements and reasoned that “[i]n light of the clear text of Rule ll(b)(l)(N) and the Supreme Court’s decision in Vonn, we see" }, { "docid": "22767922", "title": "", "text": "review Covian’s final conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We generally review de novo whether a plea colloquy met the requirements of Rule 11. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir.2003). Because Covian failed to raise this issue before the district court, however, we may only reverse his conviction on Rule 11 grounds if the district court committed plain error. Id. We also generally review de novo whether a sentence violates Apprendi. See United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003). Again, however, because Covian-Sandoval failed to raise this claim before the district court, we review his sentence for plain error. United States v. Minore, 292 F.3d 1109, 1121 (9th Cir.2002). To grant relief under the plain error standard, we must determine: (1) there was error, (2) that is plain, and (3) that affects substantial rights. Id. at 1117 (holding that the plain error test requires that there “must be an ‘error’ that is ‘plain’ and that ‘affects substantial rights’ ”) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). However, even if those requirements are met, we “will exercise our discretion to correct the error only if it ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). III. Rule 11 requires a trial judge, before accepting a guilty plea, to engage in a colloquy with the defendant to confirm that the defendant understands, among other things, “the nature of each charge to which the defendant is pleading.” Fed. R.Crim.P. 11(b)(1)(G). Before entering judgment on a plea, the court must also “determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). In evaluating the adequacy of a Rule 11 colloquy, we examine solely the record of the plea proceeding itself. United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.1986). In ascertaining whether a Rule 11 error affected the defendant’s substantial rights or the integrity of the proceeding, however, “we may look to other portions ..." }, { "docid": "22981249", "title": "", "text": "plea was fatally flawed. He timely noticed this appeal, and we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. II. When a criminal defendant presents a sentencing issue that was not properly preserved in the district court, we review the issue for plain error only. See United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.2010) (applying plain error review to substantive challenges); United States v. Lynn, 592 F.3d 572, 577 (4th Cir.2010) (applying plain error review to procedural challenges). Similarly, when a defendant contests the validity of a guilty plea that he did not seek to withdraw, we also review that challenge solely for plain error. See United States v. Martinez, 277 F.3d 517, 524, 527 (4th Cir.2002). To satisfy plain error review, the defendant must establish that: (1) there is a sentencing error; (2) the error is plain; and (3) the error affects his substantial rights. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If the three-part plain error test is satisfied, we must decide whether to cure the error, “and should not do so unless the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Hargrove, 625 F.3d at 184 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). III. In this appeal, Aplicano first contends that his three-year term of supervised release is procedurally unreasonable because the district court failed to specify appropriate reasons for its imposition. Second, Aplicano argues that the term of supervised release is substantively unreasonable because the court relied on a mistaken premise — namely, that Aplicano would be imprisoned faster if again caught illegally entering the United States. Finally, Apli-cano asserts that his guilty plea was not knowingly and voluntarily entered because the court failed to advise him of the nature and consequences of supervised release. A. Before assessing the merits of Apli-cano’s contentions, we briefly review the supervised release system, including its impact on aliens facing post-incarceration removal. Supervised release is the successor to parole, which was largely eliminated by the Sentencing Reform" }, { "docid": "23018188", "title": "", "text": "asserts that some of his responses during the plea colloquy demonstrate that his mental state was impaired at the time. To the extent he presents this argument to establish his plea was unknowing or involuntary, “such a claim would not be cogni zable on direct appeal where he failed to present it to the district court in the first instance by a motion to withdraw his guilty plea.” United States v. Washington, 515 F.3d 861, 864 (8th Cir.2008) (citing United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990)); see also United States v. Young, 927 F.2d 1060, 1061 (8th Cir.1991). Second, he contends that the district court failed to inform him that the twenty-year statutory maximum sentences for the § 876(b) charges could be run consecutively. He alleges this omission was a violation of the requirement in Federal Rule of Criminal Procedure 11 to advise him of the maximum possible penalty he faced. See Fed.R.Crim.P. 11(b)(1)(H). Instances of noncompliance with Rule 11 may be raised for the first time on appeal, but our review is for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To succeed on plain error review in this context, a defendant must show “not only an error in the failure to follow Rule 11 but also a ‘reasonable probability that but for the error, he would not have entered a guilty plea.’ ” United States v. Garcia, 604 F.3d 575, 578 (8th Cir.2010) (quoting United States v. Luken, 560 F.3d 741, 745 (8th Cir.2009)). “Even if he establishes such a probability, relief is discretionary and ‘the court should not exercise that discretion unless the error seriously affectfed] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In determining whether a Rule 11 error affected a defendant’s substantial rights, the reviewing court considers the entire record, not merely the plea proceedings. Vonn, 535 U.S. at 74-75, 122 S.Ct. 1043. Regarding the maximum penalties, the district court stated in relevant" }, { "docid": "22195654", "title": "", "text": "the charge of aiding and abetting money laundering in violation of 18 U.S.C. § 1956(A)(1)(i). Inasmuch as he did not raise this 'issue before the district court, and even now does not claim that his plea was not knowing and voluntary, we review the court’s acceptance of Tramble’s plea for plain error. Fed.R.Crim.P. 52(b). Cf. United States v. Timbana, 222 F.3d 688, 701 (9th Cir.2000) (holding that voluntariness of a guilty plea is reviewed de novo even if a defendant fails to move to vacate a judgment or withdraw his guilty plea before the district court). The authority created by Rule 52(b) is circumscribed. There must first be an error, and, second, that error must be considered “plain”. In addition, the “plain error” must affect a defendant’s substantial rights. If all three factors are present, we must determine whether this is an appropriate case in which to exercise our discretion to correct the forfeited error, because the error threatens the basic fairness, integrity, or public reputation of the district court proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Hayes, 171 F.3d 389, 391-92 (6th Cir.1999); United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998), cert. denied, 526 U.S. 1030, 119 S.Ct. 1278, 143 L.Ed.2d 371 (1999). After reviewing Tramble’s arguments, we find no error in his conviction. Tramble does not contest his actual guilt or the validity of his guilty plea on the charge of aiding and abetting money laundering. Yet, he claims that the money laundering charge should have been dismissed from the indictment because his co-defendant, Carolyn Millard, whom Tram-ble labels the “principal” perpetrator, was acquitted on this count after a jury trial. Tramble acknowledges that he asks this Court to establish a new legal rule holding that courts should dismiss the indictment of a defendant who pleads guilty prior to or after his co-conspirator is acquitted of the same offense by a jury. However, by Tramble’s own admission, there is no legal precedent that supports his claim. It is irrelevant that Tramble characterizes Carolyn Millard" }, { "docid": "22788658", "title": "", "text": "(internal marks omitted); see also United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Because Lejarde-Rada failed to object to any alleged error under Rule 11 before the district court, we review only for plain error, Mosley, 173 F.3d at 1322. Thus, Lejarde-Rada must show that there is (1) “error” (2) that is “plain” and (3) that “affeet[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776) (other internal quotation marks omitted). We have previously said that “[a] district court’s failure to address a core concern of Rule 11 constitutes plain error.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000); see also Quinones, 97 F.3d at 475. The context in which we have said that, however, is one in which there was a violation of an explicit and specific requirement of Rule 11. See Hernandez-Fraire, 208 F.3d at 949-51 (failure to inform the defendant of his right to plead not guilty, right to the assistance of counsel at trial, right to confront and cross-examine adverse witnesses at trial, and right against compelled self-incrimination, as required by Rule 11(c)(3)); Quinones, at 474-75 (failure to inform the defendant of the nature of the charge as required by Rule 11(c)(1)). The rationale is that where Rule 11 explicitly, specifically, and plainly requires that a court inform the defendant of something, it is plain error for the court not to do so. That is not the type of alleged error at issue here. Lejarde-Rada contends that the guilty plea colloquy in his case did not meet the third core concern of ensuring his awareness of the direct consequences of his guilty plea, not because the district court failed to" }, { "docid": "22688329", "title": "", "text": "we rejected an identical claim in United States v. Pratt, 239 F.3d 640, 648 (4th Cir.2001). Accordingly, we affirm General’s supervised release term. IV. General argues that the district court committed reversible error by failing to advise him during the plea colloquy about the five year mandatory minimum sentence applicable to his firearm charge. See 18 U.S.C.A. § 924(c) (West 2000) (providing a five year mandatory minimum for carrying a firearm during and in relation to a drug trafficking offense). As General notes, the district court advised General of the statutory máximums for each count but did not advise him of the statutory mandatory mínimums for his firearm offense. Rule 11(c)(1) requires the district court to inform the defendant of a statutory mandatory minimum sentence before accepting a guilty plea. Fed.R.Crim.P. 11(c)(1) (“Before accepting a plea of guilty ... the court must ... inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law....”). Because General did not seek withdrawal of his guilty plea on this ground in the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, 277 F.3d 617 (4th Cir.2002). The district court’s non-compliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General’s substantial rights. Id. In United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995), we established an analytical framework for evaluating whether the district court’s failure to advise the defendant of a statutory mandatory minimum affected the defendant’s substantial rights: The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s knowledge by compliance with Rule 11. Finally, the court must determine how the additional or corrected information would have likely affected the defendant’s decision. Id.- Applying this framework to General’s claim, had the district court recited the mandatory minimum during the plea hearing, it simply would have corroborated information" }, { "docid": "12847394", "title": "", "text": "now appeals, arguing that § 1326(b)(2) violates his Sixth Amendment right to have all facts that increase the maximum penalty submitted to a jury and determined beyond a reasonable doubt. Initially, the government argues that Kempis-Bonola has waived his right to appeal by pleading guilty. By entering an unconditional guilty plea, a criminal defendant waives the right to appeal all nonjurisdietional defects. United States v. Beck, 250 F.3d 1163, 1166 (8th Cir.2001). In this case, however, Kempis-Bonola’s guilty plea expressly reserved the right to challenge on appeal any issues that might arise if the district court “impose[d] a sentence in violation of the law apart from the sentencing guidelines.” (Appellant’s Add. at B-7.) Kempis-Bonola argues that this clause preserved his right to appeal the one issue he raises — that the district court imposed a sentence on the basis of a statute that violates his Sixth Amendment rights. We agree that this particular issue falls within the exception listed in the plea agreement, and consequently we find no waiver of this narrow issue. We review Kempis-Bonola’s constitutional challenge for plain error because he did not raise this issue before the district court. United States v. Letts, 264 F.3d 787, 789 (8th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 1211, 152 L.Ed.2d 148 (2002). Under plain error review, relief is not warranted unless the defendant demonstrates an error that is plain and that affects the defendant’s substantial rights. Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The court then has discretion to correct a forfeited error if “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotations and alterations omitted). Kempis-Bonola argues that § 1326(b)(2) violates the Sixth Amendment principles announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases" }, { "docid": "22340871", "title": "", "text": "to what occurred. After determining that Monroe was acting voluntarily and understood his rights and the consequences of his guilty plea, the district court accepted Monroe’s guilty plea. During the hearing, Monroe never objected to the plea colloquy. Subsequently, the district court sentenced Monroe to 188 months’ imprisonment. During sentencing, Monroe never objected to the earlier plea colloquy. Monroe also never filed a motion to withdraw his guilty plea. Instead, for the first time on appeal, Monroe objects to the plea colloquy and contends that the district court erred under Rule 11 by not expressly informing him of his right against compelled self-incrimination. Monroe requests that his conviction and sentence be vacated based on that Rule 11 error. II. STANDARD OF REVIEW When a defendant, such as Monroe, fails to object to a Rule 11 violation in the district court, this Court reviews under the plain-error analysis. United States v. Vonn, 535 U.S. 55, 59,122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002) (“holding] that a silent defendant has the burden to satisfy the plain-error” standard in Rule 11 error). Under plain-error review, the defendant has the burden to show that “there is (1) ‘error’ (2) that is ‘plain’ and (3) that ‘affect[s] substantial rights.’ ” United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir.2003) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)) (other internal quotation marks and citations omitted). Under plain-error review, the silent defendant has the burden “to show the error plain, prejudicial, and disreputable to the judicial system.” Vonn, 535 U.S. at 65,122 S.Ct. at 1050. Further, in the Rule 11 context, the “reviewing court may consult the whole record when considering the effect of any error on substantial rights.” Vonn, 535 U.S." } ]

[ { "docid": "7914971", "title": "", "text": "contraband, the mere possession of which is unlawful, the appellant was committing a continuing felony as long as he possessed the counterfeit money. Hence, if the arresting agent had probable cause to believe such felony was being perpetrated, the arrest was proper. The Government, seeking to establish probable cause, relies upon the reliability of the informant as established by his previous dealings with the Secret Service; the corroborative effect of the appellant’s appearance at the airport; and the fact of the observance by the arresting officer of a bulge in the appellant’s clothing which revealed a brown paper bag wrapped around “something white” exposed through a torn corner of the bag. Appellant contends that the admitted inability of the officer to recognize the contents of the paper bag as counterfeit currency until after a detailed examination had been conducted, reflects a lack of corroboration of the informant’s statement, thereby negating the existence of probable cause. It was established in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), that to constitute probable cause for an arrest it must be shown at the time the officer makes the arrest that the facts and circumstances within his knowledge and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that an offense has been or is being committed. “The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” In order to further this policy of accommodating competing policies, courts have allowed statements by a credible informant to constitute the nucleus of the requisite probable cause. In Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960), the court, citing Draper, stated: “[W]e have held that [the arresting officer] may rely upon information received through an informant, rather than upon his direct observations, so long" } ]

[ { "docid": "20838676", "title": "", "text": "rehearing denied, 398 U.S. 945, 90 S.Ct. 1850, 26 L.Ed.2d 284 (1970); United States v. Baker, 419 F.2d 83 (2d Cir. 1969), cert. denied, DeNorscio v. United States, 397 U.S. 971, 90 S.Ct. 1086, 25 L.Ed.2d 265, and 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970); United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). Admission of the Pipe Holder Under Missouri law, a police officer may make an arrest without a warrant if he has probable cause for the belief that the person arrested has committed a felony. State v. Johnson, 463 S.W.2d 785 (Mo.1971); State v. Davis, 462 S.W.2d 798 (Mo.1971); State v. Hammonds, 459 S.W.2d 365 (Mo.1970); State v. Parker, 458 S.W.2d 241 (Mo.1970). The United States Court of Ap peals for the Eighth Circuit has reviewed this practice and found it constitutionally permissible. United States v. Bonds, 422 F.2d 660 (8th Cir. 1970); Nash v. United States, 405 F.2d 1047 (8th Cir. 1969); Mueller v. Powell, 203 F.2d 797 (8th Cir. 1953). “Probable cause” exists where an arresting officer possesses personal knowledge or has received reasonably trustworthy information sufficient to lead a man of reasonable caution to believe that an offense has been committed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Bonds, supra; United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); State v. Johnson, supra. In this case, the two victims of the assault had independently identified petitioner as their abductor. The court finds that the arrest was made upon probable cause. When police have made a lawful arrest, they may contemporaneously search the arrestee’s person and the area surrounding him from which he could obtain a weapon or obtain and destroy material that could be used as evidence against him. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034," }, { "docid": "3852434", "title": "", "text": "the arrest, the officers could reasonably conclude that Serna was reliable and, based upon the information supplied by him, further conclude that appellants had committed the smuggling and assault at the port of entry the night before. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Costello v. United States, 324 F.2d 260, 262 (9th Cir. 1963). The arrest was based on probable cause. Appellants also contend that the arresting officers did not have a sufficient description of them to identify them with “reasonable certainty.” This argument is premised on Rule 4, Federal Rules of Criminal Procedure, which requires that an arrest warrant “contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty.” Appellants argue that this requirement should also extend to warrantless arrests. It is unnecessary to consider this argument since the officers had a physical description of the suspects from Serna, the kidnapped customs agent, and a cab driver, and, therefore, could have identified them with “reasonable certainty.” Resting its decision on United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the district court held that the search of the dresser in the hallway between the living room and the laundry room was reasonably incident to the arrest. Using the “totality of the circumstances” test, we agree. Appellants were arrested for smuggling and assault with a deadly weapon. The search was contemporaneous with the arrest. It was not a “fishing expedition” but was for the purpose of finding evidence of the crime for which appellants were arrested. Finally, the search was not more extensive than that permitted in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and, in fact, the gun was found within the immediate vicinity of the arrest. Compare Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), Rabinowitz and Harris were overruled, the Supreme Court" }, { "docid": "18018247", "title": "", "text": "329 (1971), citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959), Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Moreover, “[i]n dealing with probable cause, . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Even without the information obtained from the first intercepted telephone conversation, the police had probable cause to arrest Savage. Officer Stack knew that someone in Room 306 passed a twenty-dollar counterfeit bill to Tom Bar-bee. Room 306 was registered to Patrick Joseph Savage. When Stack entered the room during the early morning hours of November 26, Barbee identified Savage as the passer of the bill. See United States v. Masini, 6 Cir., 1966, 358 F.2d 100. The knowledge acquired from the first telephone intercept only established more firmly an already convincing case of probable cause. Because the police had probable cause to arrest Savage, the warrantless search of his motel room immediately following his arrest was legal under the fourth amendment. Relying on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the district court held that this search, which produced seventy counterfeit twenty-dollar bills found in the pocket of a longsleeve shirt on a closet shelf, was valid as a reasonable search incident to a lawful arrest. We agree. In Chimel the Supreme Court stated: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment" }, { "docid": "20838677", "title": "", "text": "203 F.2d 797 (8th Cir. 1953). “Probable cause” exists where an arresting officer possesses personal knowledge or has received reasonably trustworthy information sufficient to lead a man of reasonable caution to believe that an offense has been committed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Bonds, supra; United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); State v. Johnson, supra. In this case, the two victims of the assault had independently identified petitioner as their abductor. The court finds that the arrest was made upon probable cause. When police have made a lawful arrest, they may contemporaneously search the arrestee’s person and the area surrounding him from which he could obtain a weapon or obtain and destroy material that could be used as evidence against him. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, rehearing denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969). It may be that under this rationale, police had no authority to search petitioner’s locker when they first arrested him. However, when petitioner was given permission to collect his personal effects, then opened the door and removed the paper bag, the contents of that bag clearly came within the area subject to his control. There arose a substantial possibility that in picking up the bag, petitioner was in the process of obtaining a weapon or acquiring destructible evidence. There is no reason to conclude from the United States Supreme Court decisions cited above that the limits of the area into which the police may conduct a valid search without a warrant are to be fixed mechanically at the moment of arrest. The rule permitting search incident to arrest developed out of the necessity of protecting arresting officers from concealed weapons and the necessity of preserving destructible evidence. The scope of permissible search varies with the circumstances of each arrest. Terry" }, { "docid": "23591348", "title": "", "text": "cause and that there were no exigent circumstances justifying the warrantless search, seizure of personalty and incidental arrests. The problem with the appellants’ contention is that they are viewing the occurrences analytically backwards. The arrests were not incident to the search but rather the search was incident to the arrests. Exigent circumstances are not constitutionally required to make a warrantless arrest. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Campbell, 575 F.2d 505 (5th Cir. 1978). Here, there is no question that probable cause existed when the arrests were made. Clearly, the facts and circumstances within the arresting officers’ knowledge were sufficient to justify a reasonable person in the belief that an offense was being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The collective knowledge of the investigating officers was that: a group of people arrived in the Brunswick area using aliases and exploring the area at odd hours, learning the land and water routes to a residence in a secluded setting, and bringing in boats and a moving van suitable for a smuggling operation. The chain of events on Friday supplied the additional information needed to transform merely suspicious circumstances into probable cause to believe a crime was being committed: the gathering of boats and motor vehicles around a darkened house at night, the stationing of lookouts on the river, the blocking of the entrance road and the unloading of objects which resembled marijuana bales from a shrimp boat. Thus, the arrests were founded on probable cause and the lack of a warrant is irrelevant. Once the police moved in to make the arrests, the seizure of marijuana was justifiable either as a search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or as a plainview seizure, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Under either theory the denial of the motion to suppress was proper. Except for the “plain view” seizures made at the" }, { "docid": "21316323", "title": "", "text": "8 (9th Cir. 1963); Busby v. United States, 296 F.2d 328, 332 (9th Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1962); Holt v. Simpson, 340 F.2d 853, 856 (7th Cir. 1965). The approach we must follow was indicated by the Supreme Court in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964): “There are limits to the permissible scope of a warrantless search incident to a lawful arrest, but we proceed on the premise that, if the arrest itself was lawful, those limits were not exceeded here. * * * The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner’s arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” 379 U.S. at 91, 85 S.Ct. at 225. Moreover, since the arrest was made by local authorities for the state offense of carrying a concealed weapon, the validity of the arrest must also be examined under Georgia law. Ga.Code Ann. § 27-207. According to the testimony at the trial, the officers received a message from the operator of the cafe that the defendant was reportedly carrying the weapon. This information, admittedly based on hearsay, cannot by itself satisfy state or federal standards for arrest without a warrant, but the fact that information is hearsay “does not destroy its role in establishing probable cause” when reliable corroborative information is acquired. See Ker v. State of California, 374 U.S. 23, 36, 83 S.Ct. 1623, 1631, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Officer Eury, the patrolman who seized the shotgun, observed the defendant come out of a backroom “walking kind of funny and holding" }, { "docid": "4178000", "title": "", "text": "by substantial evidence the verdict of guilty; and (3) The trial Judge, in a jury-waived trial, may not participate in the examination of witnesses. The critical question presented by appellant’s first argument is the constitutional validity of the warrantless arrest. If the arrest itself was lawful, then the search made incident thereto did not exceed the permissible limits imposed on a search without a warrant. See Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Simpson, 453 F.2d 1028 (10th Cir., 1972); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The rule was best expressed in the Beck decision, supra, where the Supreme Court stated : “Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” The leading Supreme Court pronouncement on the question of probable cause sufficient to ground a warrantless arrest is Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a case factually similar to the instant case. The Court, in finding probable cause to support an arrest without warrant based upon information supplied by an unnamed paid informant, stated: “There is a large difference between the two things to be proved (guilt and probable cause), . . . and therefore a like difference in the quanta and modes of proof required to establish them.” Continuing, the Court followed the criteria set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949): “In dealing with probable cause . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and" }, { "docid": "23469389", "title": "", "text": "the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent. Also, see Chimel v. California, 395 U.S. 752, 760-762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Nevertheless, the State cites two Supreme Court opinions, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), for the proposition that a showing before the magistrate of probable cause to search can be supplemented by information or circumstances known to the police officers but not disclosed to the magistrate issuing the warrant. The two decisions, however, do not stand for this principle. There was no warrant of any kind involved in Draper. Rather, law officers arrested a heroin trafficker on a tip that he would be carrying heroin. Essential to an understanding of the Draper case is the realization that in certain instances a law enforcement officer may arrest without an arrest warrant if he, rather than a magistrate, has probable cause to believe that a crime is being committed. The Supreme Court in Draper held that a valid warrantless arrest of a suspect had been made because a post-arrest hearing showed that so much of the informer’s tip had been verified by police observation that it was reasonable for the police to conclude that the informant’s information that the suspect was carrying heroin was reliable, thereby establishing probable cause for arrest. Although Draper is valuable for providing a test on how much of the detail of an unsubstantiated informer’s tip must be verified by police before the tip can be considered reliable grounds supporting a finding of probable cause, see Spinelli v. United States, supra, 393 U.S. at 416-417, 89 S.Ct. 584; United States v. Marihart, 472 F.2d 809, 812-814 (8th Cir. 1972), Draper does not render support to the proposition that a probable cause affidavit for a search warrant can be rehabilitated after" }, { "docid": "9509075", "title": "", "text": "area of Kansas at three o’clock in the morning was not the usual. We generally agree with the trial court’s analysis of this matter. Where, as here, an arrest is made without a warrant, the arresting officer must have probable cause for making the arrest, otherwise the arrest is an unlawful one. It has been held that to constitute probable cause for an arrest it must be shown that at the time the officer makes the arrest the facts and circumstances within his knowledge and of which he has reasonably trustworthy information are such as would warrant a prudent man in believing that the person to be arrested has committed an offense. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 799 (1969). This rule of probable cause has been described as a “practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed 1879 (1949). It has also been held that probable cause is to be determined by the courts on the basis of the collective information of the police involved in the arrest, rather than exclusively on the extent of the knowledge of the particular officer who may actually make the arrest. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833 (1966), cert. denied, 384 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967). Application of the foregoing principles to the facts of the instant case leads us to conclude, as did the trial court, that Officers Freeman and Goddard did have probable cause for turning on their red lights and stopping the vehicle in which the burglars were believed to be riding and then effecting an arrest of the vehicle's occupants. The car in question was placed" }, { "docid": "4014108", "title": "", "text": "probable cause. Ker v. California, 374 U.S. 23, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Mehciz (9 Cir. 1971) 437 F.2d 145; United States v. Maynard (9 Cir. 1971) 439 F.2d 1086; Pineda v. Craven (9 Cir. 9/21/72) 465 F.2d 999, affirming on the basis of the lower court decision. (N. D.Cal.1971), 327 F.Supp. 1062, 1067. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We also hold that on the facts set forth above and found by the trial court, there was clearly probable cause for the arrest. II THE SEARCH The arrest and search occurred prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel does not apply to searches prior to June 23, 1969. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Ornease is controlled by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The photograph was in plain view and the officer was entitled to be present where the photograph was found. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Avey (9 Cir. 1970) 428 F.2d 1159, 1164. Nor did the officers go to the apartment for the purpose of a search. The seizure of the photograph was valid even under the plurality decision in Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). III THE IMPACT OF WARDEN v. HAYDEN Petitioner contends that the evidentiary use of a photograph of him wearing a straw hat of the type found at the scene of the robbery, which was seized by arresting officers in plain view in his bedroom, violated the “mere evidence” rule of Gouled v. United States (1921) 255 U.S. 298, 41 S.Ct." }, { "docid": "18411130", "title": "", "text": "support an independent judgment that probable cause exists for the warrant [citations omitted].” Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971). Next, the court applied the same probable cause standards to the arresting officers and concluded, on the basis of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), that the arresting officers did not have probable cause to arrest. However, in response to the state’s argument that the radio bulletin supplied the arresting officers with the requisite probable cause, the court noted: “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers ... in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Whiteley v. Warden, supra at 568, 91 S.Ct. at 1037. Unlike a search warrant, an arrest warrant is not a constitutional prerequisite to an arrest. Moreover, even if an arrest warrant has been issued and it is invalid, the arrest may be lawful if the arresting officer had probable cause to believe that the suspect was committing or had committed a felony. United States ex rel. Gockley v. Myers, 450 F.2d 232 (3d Cir. 1971); United States ex rel. Moore v. Russell, 330 F.Supp. 1074 (E.D.Pa.1971); United States v. Wilson, 451 F.2d 209 (5th Cir. 1971); Page v. United States, 437 F.2d 440 (9th Cir. 1970); United States v. Hall, 348 F.2d 837 (2d Cir. 1965). Appellant does not contend that Whiteley holds that the arrest and subsequent search and seizure are unlawful if an arrest warrant is defective for reasons other than a lack of probable cause or that warrantless arrests are" }, { "docid": "3670302", "title": "", "text": "394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570; Murray v. United States, 351 F.2d 330 (10th Cir. 1965); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We therefore are bound to conclude that the arrest was legal and the evidence seized was not tainted and was admissible in court as determined by the Supreme Court of the State of Wyoming. A review of the record of the original trial on the burglary charge cast doubt upon the admissibility of evidence not in plain view at the time of arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This is a pr e-Chimel case, and the Supreme Court expressly pretermitted a decision whether the Chimel principle is to be applied retroactively. We will not make the retroactive determination with regard to the exclusionary rule stated in Chimel, supra. Under pr e-Chimel standards, the Supreme Court of Wyoming specifically applied the principles then enunciated by the Supreme Court of the United States, permitting the introduction of the evidence here in question. We therefore affirm the trial court’s denial of the application for the writ. Affirmed. . § 2254(d) provides: “In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a bearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately" }, { "docid": "2276476", "title": "", "text": "only used as a device to hold these men until federal agents could file counterfeiting charges. Thus Seay asserts, the fingerprinting violated his Fifth Amendment protection against self-incrimination and constituted an unreasonable search and seizure proscribed by the Fourth Amendment. The record before us discloses that the only fingerprints used for comparison with the latent image taken from the counterfeit bill were those taken on the occasion of Seay’s arrest for vagrancy. It therefore becomes critical to determine whether this arrest complied with federal constitutional standards, because if the State arrest was illegal, its sequel — fingerprints—would be barred from use in a federal trial. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). No warrant was issued by the judicial authorities of Mobile for the vagrancy arrest of either defendant. Whether a warrantless arrest is constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Kiel v. United States, 406 F.2d 1323 (5th Cir. 1969). A determination of whether probable cause existed for making an arrest does not depend upon whether the defendants were eventually convicted, nor whether they were convicted on the same charge on which they were arrested, but whether the police had probable cause at the time to believe that an offense had been committed. Klingler v. United States, 409 F.2d 299 (8th Cir. 1969), cert. den. 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). This requires the analyzing court to deal with probabilities. Such probabilities are not technical, but factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, would act. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In applying the standard of probable cause, we determine whether the arresting officers possess knowledge of facts and circumstances gained from reasonably trustworthy sources of information sufficient to justify a man of reasonable caution and prudence in believing that an arrested person has committed or" }, { "docid": "7260174", "title": "", "text": "see it. Use of force or threats were not involved. The police officers had not placed petitioner under arrest at that time. Under similar circumstances in a hearing on motion to suppress evidence which had been given by the defendants to the law enforcement personnel during questioning but prior to their arrest, it was held that: “[A]n officer in performance of his duties temporarily may detain and question a citizen without placing him under arrest; and that any incriminating evidence which comes to the officer’s attention during such time may itself become the basis for effecting a valid arrest, and may be received in evidence against the accused.” United States v. Brett, 290 F.Supp. 929, 932 (S.D.Tex.1966), aff’d., 377 F.2d 520 (5th Cir. 1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2289, 20 L.Ed.2d 1407 (1968). On the basis of the Brett decision and related authorities, this evidence was properly introduced against petitioner. The foregoing discussion serves not only to show that prior to the arrest there was no search of petitioner and that all such evidence was admissible; it also serves to show that the arrest without a warrant was lawful. In order for an arrest without a warrant to be lawful it must be made with probable cause. The United States Supreme Court has held that “probable cause” for arrest without a warrant exists when facts and circumstances known to the officers are sufficient to warrant a prudent man in believing that defendant has committed or is committing an offense, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), or which would warrant a man of reasonable caution in believing that an offense had been or was being committed, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The totality of the circumstances and the direct knowledge that tools of the type often used in burglaries were visible on petitioner’s person and his possession of an unusually large number of coins and cigarettes would have warranted a reasonably cautious or prudent man in believing that the offense" }, { "docid": "7260175", "title": "", "text": "such evidence was admissible; it also serves to show that the arrest without a warrant was lawful. In order for an arrest without a warrant to be lawful it must be made with probable cause. The United States Supreme Court has held that “probable cause” for arrest without a warrant exists when facts and circumstances known to the officers are sufficient to warrant a prudent man in believing that defendant has committed or is committing an offense, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), or which would warrant a man of reasonable caution in believing that an offense had been or was being committed, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The totality of the circumstances and the direct knowledge that tools of the type often used in burglaries were visible on petitioner’s person and his possession of an unusually large number of coins and cigarettes would have warranted a reasonably cautious or prudent man in believing that the offense of burglary had been or was being committed. The arrest was lawful. Beck v. State of Ohio, supra; Draper v. United States, supra. That category of evidence obtained after the arrest was also properly introduced in evidence against petitioner. Perhaps no general rule is more well-recognized in this area of the law than that a search incident to a lawful arrest may be made without a warrant. United States v. Monroe, 205 F.Supp. 175 (D.C.La.1962), aff'd., 320 F.2d 277 (5th Cir. 1963), cert. denied, 375 U.S. 991, 84 S.Ct. 630, 11 L.Ed.2d 478 (1963). Further, officers may take possession of burglar tools or other proofs of guilt found upon arrest within the possession of an accused. Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S.Ct. 1866, 16 L.Ed.2d 684 (1966). Therefore, because the arrest was legal, this type of evidence was also legal and was admissible. Martin v. United States, 301 F.2d 81 (5th Cir. 1962). For these reasons, it is obvious to this Court, as it was" }, { "docid": "3670301", "title": "", "text": "was issued has been answered by the Supreme Court of the United States. McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). At the time of a warrantless arrest, the question of probable cause is determined by the arresting officer rather than a judicial officer. Under the facts recited, it is evident that the Laramie officers relied upon the state police bulletin issued by the sheriff of Carbon County, known to them to be reliable, and therefore the Supreme Court found the warrantless arrest to be lawful. We have also held that probable cause for an arrest without a warrant depends on whether, at the moment of the arrest, the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a prudent man in believing the arrested person has committed an offense. Holbrook v. United States, 406 F.2d 44 (10th Cir. 1969); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (Feb. 24, 1969), rehearing denied, 394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570; Murray v. United States, 351 F.2d 330 (10th Cir. 1965); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We therefore are bound to conclude that the arrest was legal and the evidence seized was not tainted and was admissible in court as determined by the Supreme Court of the State of Wyoming. A review of the record of the original trial on the burglary charge cast doubt upon the admissibility of evidence not in plain view at the time of arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This is a pr e-Chimel case, and the Supreme Court expressly pretermitted a decision whether the Chimel principle is to be applied retroactively. We will not make the retroactive determination with regard to the exclusionary rule stated in Chimel, supra. Under pr e-Chimel standards, the Supreme Court of Wyoming specifically applied the principles then enunciated by the Supreme Court of the United States, permitting the" }, { "docid": "9509074", "title": "", "text": "general connection, Troutman further argues that the arrest was made by Freeman alone, and that the issue of whether there was probable cause depends entirely upon the extent of Freeman’s knowledge, and that any knowledge on the part of Goddard may not be considered. In this connection it is emphasized that Officer Freeman, unlike Goddard, did not know that the burglars were believed to be escaping in a Thunderbird. The trial court agreed that the arrest was made at the time the officers stopped the Thunderbird and approached the stopped vehicle with drawn guns. However, the trial court held that under the circumstances the arrest was made by both Freeman and Goddard and that they not only had probable cause for arresting Troutman but would have been “derelict in their duty” if they had not so stopped the car in question. In thus holding, the trial court, among other things, noted that Highway 160 was not comparable to the New Jersey turnpike with its constant flow of traffic and that travel in that sparsely populated area of Kansas at three o’clock in the morning was not the usual. We generally agree with the trial court’s analysis of this matter. Where, as here, an arrest is made without a warrant, the arresting officer must have probable cause for making the arrest, otherwise the arrest is an unlawful one. It has been held that to constitute probable cause for an arrest it must be shown that at the time the officer makes the arrest the facts and circumstances within his knowledge and of which he has reasonably trustworthy information are such as would warrant a prudent man in believing that the person to be arrested has committed an offense. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 799 (1969). This rule of probable cause has been described as a “practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing" }, { "docid": "4014107", "title": "", "text": "an arrest and despite his disclaimer that an arrest occurred. The trial court found that one of the officers held a drawn gun and that an arrest occurred. We hold the facts support the court’s findings that an arrest occurred. The question of the validity of a forcible entry into a house without a warrant, on probable cause, is still an open question in the Supreme Court. Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Justice Stewart’s plurality decision p. 481, 91 S.Ct. p. 2045; Justice Harlan’s concurrence p. 492, 91 S.Ct. 2051. But see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (entry by use of manager’s key). Here there was no question as to legality of the entry. The appellant opened the door when the officers knocked. Absent the question of forcible or unlawful entry into a house, an arrest without a warrant is valid if based on probable cause. Ker v. California, 374 U.S. 23, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Mehciz (9 Cir. 1971) 437 F.2d 145; United States v. Maynard (9 Cir. 1971) 439 F.2d 1086; Pineda v. Craven (9 Cir. 9/21/72) 465 F.2d 999, affirming on the basis of the lower court decision. (N. D.Cal.1971), 327 F.Supp. 1062, 1067. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We also hold that on the facts set forth above and found by the trial court, there was clearly probable cause for the arrest. II THE SEARCH The arrest and search occurred prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel does not apply to searches prior to June 23, 1969. Williams v. United States," }, { "docid": "9772129", "title": "", "text": "was sufficient standing alone. The magistrate properly concluded that there was probable cause for issuance of the arrest warrant. Simpson’s argument that the search of his wallet was unreasonable is without merit. The Fourth Amendment secures people, their persons, houses, papers and effects against unreasonable searches and seizures. When a search of the person arrested is conducted incidental to a lawful arrest it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). A search incidental to a valid arrest may have as one of its purposes the discovery of objects or things which constitutes evidence that the person arrested has committed a crime. Pinelli v. United States, 403 F.2d 998 (10th Cir. 1968); Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert, denied 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Stone v. United States, 385 F.2d 713 (10th Cir. 1967), cert, denied 391 U.S. 966, 88 S.Ct. 2038, 20 L.Ed.2d 880 (1968). “The probable cause that is required to sustain the search is the same whether the purpose of the search is to uncover weapons, mere evidence or any of the other categories of permissible objects.” Pinelli, supra, 403 F.2d at 1000-1001. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert, denied 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969). The law does not distinguish between documents and other items found on the person arrested. All of the seized items may be admitted in evidence if determined to have probative value in relation to the commission of crime. United States v. Kirschenblatt, 16 F.2d 202 (2nd Cir. 1926). “While we agree that strict consistency might give to" }, { "docid": "3670300", "title": "", "text": "that “[o]n the next morning, defendant was taken to Rawlins and a new complaint and warrant were issued for the breaking and entering of the hardware store and defendant was bound over and later tried.” Whiteley, supra at 166. Thus, the probable cause for detention was established at the preliminary hearing, and at the trial of the case, and by the Supreme Court of the State of Wyoming. The offense charged in the complaint and warrant questioned was for breaking and entering the Rustic Bar. The preliminary hearing and information upon which Whiteley was convicted charged breaking and entry of Shively Hardware. The argument of counsel for Whiteley overlooks the determination of the Supreme Court that the arrest was warrantless and relies upon the fact that a complaint and warrant were issued prior to the apprehension charging Whiteley with a different crime than the one upon which he was finally prosecuted. Whiteley’s contention that the arrest was illegal because he was identified by an unnamed informer not shown in the complaint upon which the warrant was issued has been answered by the Supreme Court of the United States. McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). At the time of a warrantless arrest, the question of probable cause is determined by the arresting officer rather than a judicial officer. Under the facts recited, it is evident that the Laramie officers relied upon the state police bulletin issued by the sheriff of Carbon County, known to them to be reliable, and therefore the Supreme Court found the warrantless arrest to be lawful. We have also held that probable cause for an arrest without a warrant depends on whether, at the moment of the arrest, the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a prudent man in believing the arrested person has committed an offense. Holbrook v. United States, 406 F.2d 44 (10th Cir. 1969); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (Feb. 24, 1969), rehearing denied," } ]

[ { "docid": "12893396", "title": "", "text": "has stemmed from the concern that such review “might stultify the military in the performance of its vital mission.” Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971). In an attempt to accommodate the competing interests of non-interference with internal military decisions and the protection of individual rights, this court’s predecessor in Mindes v. Seaman, supra, established a two-step test to determine whether internal military matters may be reviewed. The first step requires the court contemplating review to determine whether the plaintiff has alleged that the military acted contrary to the Constitution, applicable statutes, or its own regulations and whether the plaintiff has exhausted his administrative remedies. Id. at 201. Once that determination is made, the court must then balance the substance of the allegations against the policy reasons that militate against review based on four factors: 1. the nature and strength of the plaintiff’s challenge to the military function; and 2. The potential injury to the plaintiff if review were denied; 3. the type and degree of anticipated interference with the military function; and 4. the extent to which the exercise of military expertise or discretion is involved. Id. at 201-02. See NeSmith v. Fulton, 615 F.2d at 201; Johnson v. Reed, 609 F.2d 784, 788-89 (5th Cir.1980); West v. Brown, 558 F.2d 757, 759 (5th Cir.1977), cert. denied 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). It is clear that the first prong of this test has been met. Rucker has exhausted his administrative remedies by petitioning to the ABCMR requesting the relief sought in this action and receiving an adverse determination. Rucker has alleged that the Army has violated its regulations by not affording him consulting counsel, a medical status evaluation, and an opportunity to submit statements at the outset of his elimination proceedings. Rucker has also challenged these proceedings on procedural due process grounds. It has been intimated that such allegations obviate the need for weighing the four factors of the second prong of the test. See, e.g., Woodard v. Marsh, 658 F.2d at 992 (“It is well established that, despite Mindes'doctrine of ‘nonreviewability,’" } ]

[ { "docid": "22854021", "title": "", "text": "or on a justicia-bility basis. Compare Khalsa, 779 F.2d at 1400 (rejecting suit bringing first amendment challenge to Army appearance regulations under Mindes’ second prong), with Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313-14, 89 L.Ed.2d 478 (1986) (rejecting suit bringing first amendment challenge to Air Force’s appearance regulations on the merits). . See, e.g., Costner v. Oklahoma Army Nat'l Guard, 833 F.2d 905, 907 (10th Cir.1987) (per curiam); Stinson v. Hornsby, 821 F.2d 1537, 1540 (11th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Ogden v. United States, 758 F.2d 1168, 1179 n. 7 (7th Cir.1985); Penagaricano v. Lienza, 747 F.2d 55, 60-61 (1st Cir.1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); cf. Bois v. Marsh, 801 F.2d 462, 468 (D.C.Cir.1986); Schultz v. Wellman, 111 F.2d 301, 306-07 (6th Cir.1983); Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir.1976). But see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981). . Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1440-45 (9th Cir.1988); Sandidge v. State of Wash., 813 F.2d 1025, 1026 (9th Cir.1987); Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir.1986); Khalsa, 779 F.2d at 1398; Gonzalez v. Department of Army, 718 F.2d 926, 929 (9th Cir.1983); Wallace v. Chappell, 661 F.2d 729, 732-33 (9th Cir.1981), rev’d on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Schlanger v. United States, 586 F.2d 667, 671 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979). . It is ironic that the majority concludes that it \"must determine the preliminary question whether Watkins has exhausted available intra-service remedies.” Opinion at 705. Exhaustion of intraservice remedies is, of course, the other half of Mindes’ first prong. As with the limitation to federal claims, exhaustion serves to limit judicial interference with military matters. . Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)." }, { "docid": "18921718", "title": "", "text": "advocated implementation of a two-part test for achieving the proper balance between these competing interests. First, a plaintiff challenging an internal military decision must allege a violation of the Constitution, a statute, or military regulation, and demonstrate exhaustion of intraservice remedies. If a plaintiff satisfies the first step, the trial court must then balance four factors to determine the claim’s suitability for judicial review: (1) the nature and strength of the plaintiff’s challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; and (4) the extent to which the exercise of military expertise or discretion is involved. Nieszner, 684 F.2d 563-64 (citing Mindes, 453 F.2d at 201-02). The Ninth Circuit has also found that if the first test has been met, then it might be possible to streamline the second test. [W]e suggest that there is a simpler and perhaps sounder manner of handling this issue____ In several decisions, all in the last eight years, this Court has discussed the reviewability of military decisions. In these eases, this Court has specifically held that, while the U.S. judiciary may review armed forces’ orders of discharge, Denton v. Secretary of the Air Force, 483 F.2d 21, 24 (9th Cir.1973) cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974), federal courts should not review internal military decisions such as duty orders or duty assignments. Covington v. Anderson, 487 F.2d 660, 664-65 (9th Cir.1973); Denton, supra, at 24; Arnheiter v. Chafee, 435 F.2d 691 (9th Cir.1970) (per curiam). See also Correa v. Clayton, 563 F.2d 396, 399 (9th Cir.1977). Schlanger v. United States, 586 F.2d 667, 671 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979). But see Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983) (adopting the four-part test announced in Mindes). 3. Basis of Plaintiff s Claim Turning to the first test announced above, the Court must determine whether the plaintiff has alleged a violation of the Constitution, a statute or military" }, { "docid": "18974246", "title": "", "text": "error. If the ABCMR were to find in Navas’s favor, but the PRNG were to refuse to give his case further attention, Navas might (although we do not now decide the matter) be able to demonstrate a sufficiently compelling need for a court to undertake review of his claim under the Mindes formula. See Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971); see also Penagaricano, 747 F.2d at 60-61. If this eventuality were to come about, the court would benefit greatly from having before it the Army’s interpretation of its own regulations. Finally, Navas argues that he should not be compelled to seek relief from the ABCMR because the regulations do not contemplate review by the board. The short answer to this argument is that 10 U.S.C. § 1552 is a generally available remedy, of which Navas was informed if he was not already aware, and is available to “correct any military record ... when ... necessary to correct an error or remove an injustice.” (Emphasis added.) The fact that the regulations do not make specific mention of the availability of ABCMR review does not affect Navas’s ability or duty to seek relief under 10 U.S.C. § 1552. Our decision today is consonant with the general rule that “military personnel with grievances against the military establishment or its personnel must exhaust the administrative remedies provided by the military service before seeking relief in civilian courts.” Penagaricano, 747 F.2d at 61; Rivera-Rodriguez v. Commanding Officer, 596 F.2d 508 (1st Cir.1979) (affirming district court dismissal of PRNG member’s suit for failure to exhaust administrative remedies); United States v. Sweet, 499 F.2d 259, 262 (1st Cir.1974); Emma v. Armstrong, 473 F.2d 656 (1st Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 87, 38 L.Ed.2d 88 (1973); see also Horn v. Schlesinger, 514 F.2d 549 (8th Cir.1975); Hodges v. Callaway, 499 F.2d 417 (5th Cir.1974). As the Hodges court noted, where the gravamen of the complaint is that the service did not follow its regulations in arriving at the contested decision whether this is viewed as a legal or a factual question, the Army" }, { "docid": "11779111", "title": "", "text": "or former servicemen against their superior officers is, at the very least, narrowly circumscribed. Several of the circuit courts, acknowledging the breadth of Chappell, have declared off limits § 1983 claims by National Guard personnel, Brown v. United States, 739 F.2d 362, 366-67 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985); and a claim based on the alleged inadequacy of an intraservice remedy, Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). Only one circuit has held that Chappell did not directly preclude the justiciability of a serviceman's complaint that he was severed from the National Guard in violation of his rights to due process. See Penagaricano v. Lienza, 747 F.2d 55, 59 (1st Cir.1984). We note, in any event, that the Penagaricano court ultimately found the guardman’s claims to constitute a nonjusticiable military controversy. Id. at 64. See Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971). We agree with the reasoning behind the majority of the circuit cases, as we perceive no basis upon which to distinguish such claims from those held impermissible by Chappell. Section 1983 and due process claims, like those predicated on Bivens, invite judicial second-guessing of military actions and tend to overlap the remedial structure created within each service, which, according to Chappell, provide an exclusive remedy subject to review only under the arbitrary and capricious standard. 462 U.S. at 302-03, 103 S.Ct. at 2366-67, 76 L.Ed.2d at 592-93. Consequently, appellants’ requests for money damages, to the extent they are based upon alleged constitutional violations and 42 U.S.C. § 1983, are precluded by Chappell. We similarly reject the claims alleging a conspiracy violative of 42 U.S.C. § 1985(2). Inasmuch as the litigation of a claim under this statute would disserve the interests of proper military functioning to the same extent as a Bivens or an FTCA claim, the rationale of Chappell compels dismissal. To the" }, { "docid": "20999996", "title": "", "text": ". 794 F.2d 1034 (5th Cir.1986). . Jorden v. National Guard Bureau, 799 F.2d 99, 108 (3d Cir.1986). . Brown v. United States, 739 F.2d 362, 366-67 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). . Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985). . 747 F.2d 55, 59-61 (1st Cir.1984). . 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). . Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). . 569 F.2d 291 (5th Cir.1978). . Id., 569 F.2d at 293. . Walker v. Alexander, 569 F.2d at 294. . Gant v. Binder, 596 F.Supp. 757, 766-67 (D.Neb.1984), aff'd, 766 F.2d 358 (8th Cir.1985); see also West v. Brown, 558 F.2d 757, 760 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). . Kush v. Rutledge, 460 U.S. 719, 725-26, 103 S.Ct. 1483, 1487-88, 75 L.Ed.2d 413 (1983); Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 344-47 (5th Cir.), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981); Raybom v. Miss. State Bd. of Dental Examiners, 776 F.2d 530, 532 (5th Cir.1985). . See, e.g., Jewell v. City of Covington, 425 F.2d 459 (5th Cir.), cert. denied, 400 U.S. 929, 91 S.Ct. 195, 27 L.Ed.2d 189 (1970); Hobson v. Wilson, 737 F.2d 1, 30 (D.C.Cir.1984); Ostrer v. Avonwald, 567 F.2d 551, 553 (2d Cir.1977); Hoffman v. Halden, 268 F.2d 280, 295-96 (9th Cir.1959). . Yglesias v. Gulf Stream Park Racing Ass'n, 201 F.2d 817, 818 (5th Cir.), cert. denied, 345 U.S. 993, 73 S.Ct. 1132, 97 L.Ed. 1400 (1953); Powell v. Workmen’s Compensation Bd. of State of New York, 327 F.2d 131, 137 (2d Cir.1964); Hoffman v. Halden, supra. . Kush, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413." }, { "docid": "8589112", "title": "", "text": "eleventh amendment barred the claims against the National Guard and Adjutant General Lienza in his official capacity, and that the Advisory Board members were federal officers who could be sued only under the Federal Tort Claims Act. The district court also ruled that the entire case was a nonjusticiable military matter. Penagaricano appealed to this court. We agree that Penagaricano’s claims present a nonjusticiable military controversy and affirm on that basis. We reach this result, however, somewhat differently than did the district court. In particular, we do not see Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), a case relied on heavily below, as directly controlling, although, to be sure, the Supreme Court’s emphasis in that decision on the importance of the military’s decisionmaking autonomy is relevant. Chappell involved the question of whether the Court would recognize a Bivens -type cause of action for enlisted men suing their superior officers. By contrast, the determining issue here is whether Penagaricano’s claim to reinstatement is justiciable given the special characteristics of the military setting. Although the “special factors” the Court discussed in deciding not to fashion a Bivens remedy are con siderations to be balanced in the justiciability equation, the Chappell reasoning does not directly control the issue before us. The analysis this and most other circuits have endorsed for determining the reviewability of claims arising incident to military service was first stated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). See Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir.1972); see also Rucker v. Secretary of the Army, 702 F.2d 966 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981); NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980); Schlanger v. United States, 586 F.2d 667 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Williams v. United States, 541 F.Supp. 1187 (E.D.N.C.1982); Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981); BenShalom v. Secretary" }, { "docid": "924246", "title": "", "text": "own regulations, and (b) exhaustion of available intraservice corrective measures.” Id. at 201. Both Mindes and Dillard alleged constitutional deprivations. Mindes had exhausted all military review. In Dillard’s case the government has not claimed that Dillard failed to exhaust any military remedies that may have been available. Accordingly, in analyzing the Mindes standard we have no occasion to address this aspect as it pertains to Dillard. The alleged constitutional violations under Mindes were examined by that court in light of four factors: 1. The nature and strength of the plaintiff’s challenge to the military determination. Constitutional claims, normally more important than those having only a statutory or regulatory base, are themselves unequal in the whole scale of values — compare haircut regulation questions to those arising in court-martial situations which raise issues of personal liberty. An obviously tenuous claim of any sort must be weighted in favor of declining review. 2. The potential injury to the plaintiff if review is refused. 3. The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief. 4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and experience of professionals in matters such as promotions or orders directly related to specific military functions. Id. at 201-02. The court in Mindes, having established the factors by which the justici-ability of claims brought against the military was to be determined, then remanded the case to the district court for an appropriate weighing of these factors. The Mindes approach was employed in three challenges to the same regulation that we now consider: West v. Brown, 558 F.2d 757 (5th Cir. 1977), cert. denied 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978); Henson v. Alexander, 478 F.Supp. 1055 (W.D.Ark.1979) and Lindenau v. Alexander, Docket No. Civ. 79-534C (D.N.C.1979). In all three cases, the court" }, { "docid": "22983559", "title": "", "text": "suit in Court of Claims); Ex Parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879) (habeas corpus). See generally Rosen, Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial, 108 Mil.L.Rev. 5, 67 & n. 390 (1985). Williams makes no allegation before us that his conviction was not within the scope of the jurisdiction and duty of the military court. . In Mindes v. Seamans, 453 F.2d 197, 201 (5th Cir.1971), the court said that (1) allegation of a deprivation of a constitutional right or violation of statute or regulations, and (2) exhaustion of remedies provided by the military, are necessary, but added four further factors to consider before a court may exercise jurisdiction to review military affairs. Id. at 201-02. The Mindes test has been followed by a number of courts. See Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984); Gonzalez v. Department of Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68, 71 (10th Cir.1981); West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). Another circuit, while declining to follow the entire Mindes approach, see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981), followed that portion holding exhaustion as a prerequisite. See Bowman v. Wilson, 672 F.2d 1145 (3d Cir.1982). . Congress amended § 1552 in 1983 to limit the Board’s power to correction of records \"to reflect actions taken by reviewing authorities____’’ 10 U.S.C. § 1552(f) (1982 & Supp.1983). However, this change was not effective until December 6, 1983, nearly six months after Williams was convicted by the Special Court-Martial and had filed this present action. . The Court of Claims has consistently upheld the general rule requiring exhaustion, limiting exception to certain specific circumstances not present here. See, e.g., Hagarty v. United States, 449 F.2d" }, { "docid": "15621188", "title": "", "text": "prohibition on the filing of Bivens-type actions by servicemen against their superiors”), cert. denied, — U.S. -, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). B. Reviewability A second, independent ground for proper dismissal of Trerice’s constitutional claims is provided by the fact that the military decisions upon which his complaint focuses are not subject to judicial review, under the doctrine of Wallace v. Chappell, 661 F.2d 729, 731-34 (9th Cir.1981), rev’d on other qrounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). There, we adopted, “at least where constitutional claims are asserted,” id. at 733, a version of the Fifth Circuit’s test of reviewability of military decisions as enunciated in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971). We have since reaffirmed these principles in several decisions written after the Supreme Court’s reversal of Wallace. See Helm v. State of California, 722 F.2d 507, 509-10 (9th Cir.1983); Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983); Gonzalez v. Department of Army, 718 F.2d 926, 929-30 (9th Cir.1983). Trerice’s constitutional claims fail to satisfy at least one requirement of this test, in that they lack any allegation of exhaustion of intraservice remedies, and so were properly dismissed. II. THE 42 U.S.C. § 1985(3) CLAIM Trerice’s 42 U.S.C. § 1985(3) claim is deficient in at least two respects, and so was properly dismissed. The Supreme Court in Chappell v. Wallace left open the possibility that a cause of action in monetary damages does not exist under section 1985(3) for military personnel against their superior officers for injuries sustained in the line of duty, for reasons similar to those governing the blanket prohibition of Bivens-type actions in such circumstances. 462 U.S. at 305 n. 3, 103 S.Ct. at 2368 n. 3. Indeed, we have since applied the Chappell reasoning to prohibit suits by military personnel against their superiors under 42 U.S.C. § 1985(1), although we did not reach that issue with respect to section 1985(3). Mollnow v. Carlton, 716 F.2d at 630-32. We choose not to resolve that issue in the present case, however, because there exist independent" }, { "docid": "18376219", "title": "", "text": "that “litigation over intentional torts would appear to disrupt military discipline and undermine military decision-making as much as” other types of litigation. 663 F.2d at 1235. The Chappell decision only reinforces this conclusion. The Court must therefore dismiss plaintiff’s common law tort claims against the seven individual defendants, in both their individual and official capacities. See Lombard, supra, 690 F.2d at 127. In summary, all of plaintiff’s damages claims are dismissed; the remaining claims are those for declaratory and injunctive relief. B. Declaratory and Injunctive Relief Plaintiff’s other claims basically arise from the circumstances surrounding his 1981 hospitalizations. Plaintiff seeks a declaration that the hospitalizations violated both Army Regulation 600-20 and the Due Process Clause of the Fifth Amendment, and that certain administrative actions, including preparation of two OERs, and promotion and medical special pay determinations, were improperly affected or “tainted” by the illegal hospitalizations. Plaintiff asks the Court for injunctive relief with respect to expungement of his records, restoration to active duty status, and restoration of medical credentials and special pay. In essence, plaintiff is asking this Court to review and reverse a number of military personnel determinations and orders. The concerns articulated in Feres and Chappell with respect to judicial intrusion into military affairs do not, of course, dissipate when a court’s focus shifts from monetary to other forms of relief. Indeed, the parties here do not agree on an appropriate standard of review, and offer authorities for standards ranging from de novo to absolute nonreviewability of the challenged orders. In particular, defendants rely on the Fifth Circuit decision in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for the proposition that certain “military personnel decisions” are simply “not reviewable” by a federal court. The decision in Mindes v. Seaman spawned a series of cases in the Courts of Appeal involving the validity and application of a preliminary “justiciability” analysis in military matters. See, e.g., Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982)," }, { "docid": "18376221", "title": "", "text": "cert. denied sub nom. Nieszner v. Orr, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Dillard v. Brown, 652 F.2d 316, 322-23 (3d Cir.1981); Lindenau v. Alexander, 663 F.2d 68, 71-72 (10th Cir.1981). See generally Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984). In considering the reviewability issue in this case, it is important to recognize that the Court is not writing on a clean slate, and that a second line of cases is relevant. Plaintiff brought all of these matters, including his constitutional claims, before the Army Board for Correction of Military Records. The Court on October 13, 1983, granted plaintiff leave to amend his corn- plaint to reflect the Board’s determination. In this posture, the reviewability issue is narrowed; the question now is the effect in this proceeding of the Board’s rejection of plaintiff’s claims. Resolution of this issue requires a brief review of the functions and powers of the Board, and of the role of a court in reviewing matters previously passed upon by the Board. The Court concludes that while it does not write on a clean slate, its co-author — the Board — has not written enough. 1. The Army Board for Correction of Military Records: Generally By statute, the Secretary of each military department, through an appointed board, “may correct any military record of that department when he considers it necessary to correct an error or remove injustice.” 10 U.S.C. § 1552(a). Regulations establishing and governing the Army Board are found at 32 C.F.R. § 581.3 (1983). The Board’s powers are quite broad; for example, the Board may “order retroactive back pay and retroactive promotion.” Chappell, supra, 103 S.Ct. at 2367 (citing 10 U.S.C. § 1552(c)). See generally Baxter v. Claytor, 652 F.2d 181, 185 (D.C.Cir.1981); Knehans v. Alexander, supra, 566 F.2d at 315; Neal v. Secretary of the Navy, 639 F.2d 1029, 1042-43 (3d Cir.1981); Sanders v. United States, 594 F.2d 804, 811-14, 219 Ct.Cl. 285 (1979). More importantly: “Once a plaintiff has sought relief from the Corrections Board, such plaintiff is bound by that board’s" }, { "docid": "22983558", "title": "", "text": "1982, P.L. 97-164, 96 Stat. 25, indicate confusion. The Court of Claims was granted equity powers in 1972. See P.L. 92-415, 86 Stat. 652 (1972). If Williams meant the United States Claims Court, he was equally mistaken. Under 28 U.S.C. § 1491(a)(2), the Claims Court may \"[t]o provide an entire remedy and to complete the relief afforded by the judgment ... issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records ...” It may remand appropriate matters to any administrative or executive body or official \"with such direction as it may deem proper and just.” Id. . As the Supreme Court has noted, there is no conflict between the general rule and that permitting collateral impeachment of \"void judgments\", i.e. judgments of a military court not \"within the scope of its jurisdiction and duty”. Schlesinger v. Councilman, 420 U.S. at 747-49, 95 S.Ct. at 1307-08; see also Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887) (collateral attack in backpay suit in Court of Claims); Ex Parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879) (habeas corpus). See generally Rosen, Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial, 108 Mil.L.Rev. 5, 67 & n. 390 (1985). Williams makes no allegation before us that his conviction was not within the scope of the jurisdiction and duty of the military court. . In Mindes v. Seamans, 453 F.2d 197, 201 (5th Cir.1971), the court said that (1) allegation of a deprivation of a constitutional right or violation of statute or regulations, and (2) exhaustion of remedies provided by the military, are necessary, but added four further factors to consider before a court may exercise jurisdiction to review military affairs. Id. at 201-02. The Mindes test has been followed by a number of courts. See Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984); Gonzalez v. Department of Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th" }, { "docid": "22983560", "title": "", "text": "Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68, 71 (10th Cir.1981); West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). Another circuit, while declining to follow the entire Mindes approach, see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981), followed that portion holding exhaustion as a prerequisite. See Bowman v. Wilson, 672 F.2d 1145 (3d Cir.1982). . Congress amended § 1552 in 1983 to limit the Board’s power to correction of records \"to reflect actions taken by reviewing authorities____’’ 10 U.S.C. § 1552(f) (1982 & Supp.1983). However, this change was not effective until December 6, 1983, nearly six months after Williams was convicted by the Special Court-Martial and had filed this present action. . The Court of Claims has consistently upheld the general rule requiring exhaustion, limiting exception to certain specific circumstances not present here. See, e.g., Hagarty v. United States, 449 F.2d 352, 355, 196 Ct.CI. 66 (1971), and cases cited therein. In Bowling v. United States, 713 F.2d 1558 (Fed.Cir.1983), a former serviceman who sought to collaterally attack his court-martial conviction had first exhausted the full scope of remedies available within the military. Id. at 1560. . In the Military Justice Act of 1983, Pub.L. No. 98-209, 97 Stat. 1393 (1983), Congress provided for Supreme Court issuance of writs of certiorari to the Court of Military Appeals. P.L. 98-209, 98th Cong. 1st Sess., § 10(a)(1), codified at 28 U.S.C. § 1259. Congress did not intend thereby to reduce the independence of the military courts: “the Court of Military Appeals will remain the primary source of judicial authority under the Uniform Code of Military Justice.\" H.Rep. No. 98-549, 16-17, reprinted in 1983 U.S.Code Cong. & Ad.News 2177, 2182; see also Rosen, supra n. 7, at 81-83. . Questions respecting the reliability of laboratory screening of urinalysis samples have been raised, resulting in an order by the Surgeon General of the Navy that six thousand samples be retested." }, { "docid": "18376220", "title": "", "text": "is asking this Court to review and reverse a number of military personnel determinations and orders. The concerns articulated in Feres and Chappell with respect to judicial intrusion into military affairs do not, of course, dissipate when a court’s focus shifts from monetary to other forms of relief. Indeed, the parties here do not agree on an appropriate standard of review, and offer authorities for standards ranging from de novo to absolute nonreviewability of the challenged orders. In particular, defendants rely on the Fifth Circuit decision in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for the proposition that certain “military personnel decisions” are simply “not reviewable” by a federal court. The decision in Mindes v. Seaman spawned a series of cases in the Courts of Appeal involving the validity and application of a preliminary “justiciability” analysis in military matters. See, e.g., Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied sub nom. Nieszner v. Orr, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Dillard v. Brown, 652 F.2d 316, 322-23 (3d Cir.1981); Lindenau v. Alexander, 663 F.2d 68, 71-72 (10th Cir.1981). See generally Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984). In considering the reviewability issue in this case, it is important to recognize that the Court is not writing on a clean slate, and that a second line of cases is relevant. Plaintiff brought all of these matters, including his constitutional claims, before the Army Board for Correction of Military Records. The Court on October 13, 1983, granted plaintiff leave to amend his corn- plaint to reflect the Board’s determination. In this posture, the reviewability issue is narrowed; the question now is the effect in this proceeding of the Board’s rejection of plaintiff’s claims. Resolution of this issue requires a brief review of the functions and powers of the Board, and of the role of a court in reviewing matters previously passed upon by the" }, { "docid": "20999994", "title": "", "text": "may be set aside if they are arbitrary and capricious or are not supported by substantial evidence. This remedy was found sufficient in Chappell, for it is the remedy Congress has chosen to provide. The judgment of the district court is therefore amended to recognize that dismissal of the suit is to be without prejudice to Holdiness’ right to seek judicial review by the Army Board for the Correction of Military Records, and, as thus modified, is affirmed. . 32 U.S.C. § 709(e)(1); Tennessee v. Dunlap, 426 U.S. 312, 313, 96 S.Ct. 2099, 2100, 48 L.Ed.2d 660 (1976). . 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . U.S. Const, art. 1, § 8, cl. 15, 16. . 381 U.S. 41, 46, 85 S.Ct. 1293, 1296, 14 L.Ed.2d 205, vacated on other grounds, 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965). . New Jersey Air Nat'l Guard v. Federal Labor Relations Authority, 677 F.2d 276, 278 (3d Cir.1982). . Maryland v. United States, 381 U.S. at 47, 85 S.Ct. at 1297. . Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). . 615 F.2d 196 (5th Cir.1980). . 494 F.2d 830, 832 (5th Cir.1974). . NeSmith v. Fulton, 615 F.2d at 199 (quoting Davis v. Vandiver, 494 F.2d at 832 (emphasis in original)). . Id., 615 F.2d at 200. . Id. (citations omitted) (emphasis added). . 453 F.2d 197 (5th Cir.1971). . Id., 453 F.2d at 199. . See also West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). . Mindes, 453 F.2d at 201. . 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). . 747 F.2d 55 (1st Cir.1984). . Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). . 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). . See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)." }, { "docid": "8589130", "title": "", "text": "the necessity for judicial restraint in hearing claims involving military discipline and the relationship between military personnel and their superior officers. It noted: The need for special regulations in relation to military discipline, and the consequent need and justification for a special and exclusive system of military justice, is too obvious to require extensive discussion____ [W]e must be \"concern[ed] with the disruption of ‘[t]he peculiar and special relationship of the soldier to' his superiors’ that might result if the soldier were allowed to hale his superiors into court.” Id. at 2365-67 (quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954)). The second \"special factor” was Congress’s activity in the field. The Court noted that Con gress, exercising its plenary authority over the military, has enacted a \"comprehensive internal system of justice to regulate military life” but has not provided a damages remedy for claims by military personnel that their constitutional rights have been violated by superior officers. The Court concluded that judicial creation of a remedy would be \"plainly inconsistent with Congress’ authority in the field.” Id. 103 S.Ct. at 2367. . Because the district court apparently did not reach its decision by using the Mindes test, the proper procedure would ordinarily be to vacate the district court's order and remand for a determination of reviewability using Mindes, and for resolution of Penagaricano’s claims, if they are determined to be justiciable. See Mindes, 543 F.2d at 202. But since the district court resolved the issue on cross-motions for summary judgment and judgment on the pleadings based on facts stipulated at a pretrial conference, we are able to resolve the questions of law based on those facts. See Rucker v. Secretary of the Army, 702 F.2d 966, 969 n. 6 (11th Cir.1983); West v. Brown, 558 F.2d 757, 759 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). . Penagaricano did not allege or prove special circumstances that might arguably have created an entitlement. Cf. NeSmith, 615 F.2d at 200 (dismissed as technician before enlistment terminated; therefore, had" }, { "docid": "6507775", "title": "", "text": "summary judgment. Mobil Oil Corp. v. Federal Energy Administration, 566 F.2d 87, 92 (Em.App.1977); Schlothan v. Territory of Alaska, 276 F.2d 806, 815 (9th Cir.), cert. denied, 362 U.S. 990, 80 S.Ct. 1079, 4 L.Ed.2d 1022 (1960). B. The ADEA Does Not Apply to Army Reserve Personnel This court has recently held that Title VII, 42 U.S.C. § 2000e-16(a) (Supp. 1981), does not apply to members of the armed forces. Gonzalez v. Dept. of Army, 718 F.2d 926 (9th Cir.1983). See also Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). Title VII uses language identical to that in the ADEA to bar discrimination against “employees ... in military departments as defined in § 102 of Title 5.” 42 U.S.C. § 2000e-16(a). Gonzalez is applicable here. This court has applied Title VII precedent to ADEA cases. See, e.g., Bunch v. United States, 548 F.2d 336, 340 n. 6 (9th Cir.1977). The ADEA does not apply to military reservists. II. Jurisdiction to Hear Constitutional Claims Assuming that jurisdiction exists under 28 U.S.C. § 1346, the claims Helm raises are not reviewable. This circuit recently adopted a multi-fac-tored analysis for determining whether a civilian court should review a serviceman’s allegation of deprivation of a recognized constitutional right by the military. Gonzalez v. Department of Army, 718 F.2d 926 at 929 (9th Cir.1983); Wallace v. Chappell, 661 F.2d 729, 732-34 (9th Cir.1981), rev’d on other grounds, - U.S. -, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The first phase of the analysis is satisfied here. (1) Helm has alleged constitutional violations, and (2) he has exhausted administrative remedies. The second phase requires weighing four factors: (1) the nature and strength of the claim; (2) the potential injury to Helm if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved. Gonzalez, at 930. On balance, these factors favor finding Helm’s claims nonreviewable. Age discrimination is examined for a rational basis, which the military could easily establish. See Massachusetts Board" }, { "docid": "8589113", "title": "", "text": "military setting. Although the “special factors” the Court discussed in deciding not to fashion a Bivens remedy are con siderations to be balanced in the justiciability equation, the Chappell reasoning does not directly control the issue before us. The analysis this and most other circuits have endorsed for determining the reviewability of claims arising incident to military service was first stated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). See Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir.1972); see also Rucker v. Secretary of the Army, 702 F.2d 966 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981); NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980); Schlanger v. United States, 586 F.2d 667 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Williams v. United States, 541 F.Supp. 1187 (E.D.N.C.1982); Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981); BenShalom v. Secretary of the Army, 489 F.Supp. 964 (E.D.Wis.1980); Bollen v. National Guard Bureau, 449 F.Supp. 343 (W.D.Pa.1978). But see Dillard v. Brown, 652 F.2d 316 (3d Cir.1981); Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984). The Mindes court reasoned that when a court is faced with the issue of when internal military affairs should be subjected to judicial review, What we really determine is a judicial policy akin to comity. It is a determination made up of several subjective and interrelated factors. Traditional judicial trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions. Concern has also been voiced that the courts would be inundated with servicemen’s complaints should the doors of reviewability be opened. But the greatest reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission. Mindes, 453 F.2d at 199. The" }, { "docid": "22854020", "title": "", "text": "present an obstacle to civilian claims against the military. Bledsoe v. Webb, 839 F.2d 1357, 1359 (9th Cir.1988). .The Mindes doctrine is analogous to the political question doctrine in limiting the types of disputes which courts are competent to resolve. See Khalsa v. Weinberger, 779 F.2d 1393, 1395 n. 1 (9th Cir.), prior judgment reaff'd, 787 F.2d 1288 (9th Cir.1985). Consequently, the doctrine refers \"to 'reviewability' rather than to ‘subject matter jurisdiction.’” Id. at 1396 n. 2. This dissent will use the term \"justiciability\" synono-mously with \"reviewability.” . The factors weighed in the second prong include: the nature and strength of plaintiffs claim; the potential injury to plaintiff; the type and degree of anticipated interference with the military function; and the level of military expertise and discretion. As Watkins’ equitable estoppel claim fails to satisfy the first prong of the Mindes test, the dissent does not analyze these four factors. In addition, this case does not require us to decide whether the cases rejecting constitutional claims under Mindes' second prong do so on the merits or on a justicia-bility basis. Compare Khalsa, 779 F.2d at 1400 (rejecting suit bringing first amendment challenge to Army appearance regulations under Mindes’ second prong), with Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313-14, 89 L.Ed.2d 478 (1986) (rejecting suit bringing first amendment challenge to Air Force’s appearance regulations on the merits). . See, e.g., Costner v. Oklahoma Army Nat'l Guard, 833 F.2d 905, 907 (10th Cir.1987) (per curiam); Stinson v. Hornsby, 821 F.2d 1537, 1540 (11th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Ogden v. United States, 758 F.2d 1168, 1179 n. 7 (7th Cir.1985); Penagaricano v. Lienza, 747 F.2d 55, 60-61 (1st Cir.1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); cf. Bois v. Marsh, 801 F.2d 462, 468 (D.C.Cir.1986); Schultz v. Wellman, 111 F.2d 301, 306-07 (6th Cir.1983); Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir.1976). But see Dillard v." }, { "docid": "20999995", "title": "", "text": ". Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). . 615 F.2d 196 (5th Cir.1980). . 494 F.2d 830, 832 (5th Cir.1974). . NeSmith v. Fulton, 615 F.2d at 199 (quoting Davis v. Vandiver, 494 F.2d at 832 (emphasis in original)). . Id., 615 F.2d at 200. . Id. (citations omitted) (emphasis added). . 453 F.2d 197 (5th Cir.1971). . Id., 453 F.2d at 199. . See also West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). . Mindes, 453 F.2d at 201. . 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). . 747 F.2d 55 (1st Cir.1984). . Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). . 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). . See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . 794 F.2d 1034 (5th Cir.1986). . Jorden v. National Guard Bureau, 799 F.2d 99, 108 (3d Cir.1986). . Brown v. United States, 739 F.2d 362, 366-67 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). . Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985). . 747 F.2d 55, 59-61 (1st Cir.1984). . 716 F.2d 627, 629-30 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984). . Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). . 569 F.2d 291 (5th Cir.1978). . Id., 569 F.2d at 293. . Walker v. Alexander, 569 F.2d at 294. . Gant v. Binder, 596 F.Supp. 757, 766-67 (D.Neb.1984), aff'd, 766 F.2d 358 (8th Cir.1985); see also West v. Brown, 558 F.2d 757, 760" } ]

[ { "docid": "23167649", "title": "", "text": "28,1970, reversing its original decision to upgrade plaintiffs’ positions from GS-13 to GS-14. On June 11,1970, plaintiffs filed the instant petition alleging that the Commission’s first decision of February 6 was final and binding on all administrative, certifying, payroll, disbursing and accounting officials of the Government. Plaintiffs’ prayer is for back-pay reflecting the difference between the base pay of a grade GS-13 and GS-14 from Feb. 6, 1970 to date of judgment. The parties, by their briefs and oral argument, have framed two issues for our consideration: (1) whether the Commission had the power to reconsider its original decision of Feb. 6; and (2) if reconsideration was proper, whether the Commission’s revised decision of Feb. 20 was arbitrary, capricious or unsupported by substantial evidence. We must first address the question whether the Commission’s reconsideration of its initial decision of Feb. 6 was proper. Plaintiffs’ contention that the Feb. 6 decision was final, conclusive and binding, is based on 5 C.F.R. § 511.610 (1971) which states: An appeal decision made by the Commission is final. There is no further right to appeal. The appeal decision shall constitute a certificate which is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government. Plaintiffs contend further that the Commission’s reconsideration pursuant to agency request is precluded by 5 C.F.R. § 511.611 (1971) which charges the Commission’s Bureau of Inspections with the discretionary authority to reopen and reconsider any appeal decision made by a Commission regional office. Defendant, on the other hand, argues that it is the inherent right of every tribunal to reconsider its own decision within a reasonably short period of time, absent legislation to the contrary. Any inquiry into the reconsideration powers of an administrative agency must take full cognizance of the broad policy considerations succinctly defined by Mr. Chief Justice Warren in Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 321 (1961) : Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching" } ]

[ { "docid": "7465596", "title": "", "text": "court held that “when a motion for rehearing is made, the time for filing a petition for judicial review does not begin to run until the motion for rehearing is acted upon by the Board.” Id. at 228. The Supreme Court cited this very language in American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 541, 90 S.Ct. 1288, 1293, 25 L.Ed.2d 547 (1970), where it held that an order by the ICC was not so final as to bar the Commission’s later reopening of the record. See also CAB v. Delta Air Lines, 367 U.S. 316, 326, 81 S.Ct. 1611, 1619, 6 L.Ed.2d 869 (1961). Significant policy reasons dictate that judicial review not precede an administrative agency’s resolution of a motion to reconsider its decision: “[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary. Practical considerations, therefore, dictate that when a petition for rehearing is filed, review may properly be deferred until this has been acted upon. The contrary result ... has caused parties to file so called ‘protective’ petitions for judicial review while petitions for rehearing before the Board were pending. A whole train of unnecessary consequences flowed from this: the Board and other parties may be called upon to respond and oppose the motion for review; when the Board acts, the petition for judicial review must be amended to bring the petition up to date.” Outland v. CAB, 284 F.2d at 227-28. “It is in the interest of judicial economy and agency responsibility to allow [a] Commission to reconsider its orders ..., rather than to compel an applicant to invoke immediate judicial review.” B. J. McAdams, Inc. v. ICC, 551 F.2d 1112, 1115 (8th Cir. 1977) . In those instances where a statute or a regulation provides for agency reconsideration, courts have held that a motion for reconsideration delays the time for seeking judicial review until the agency has acted upon the motion. See ECEE, Inc. v. FERC, 611 F.2d 554, 557 (5th Cir. 1980);" }, { "docid": "15117061", "title": "", "text": "Division of the Department of Labor notified Macktal in March 1986 that his claim lacked merit. Macktal requested a hearing, before an administrative law judge (“ALJ”). The ALJ encouraged the parties to settle, and the parties signed a settlement agreement in January 1987. Macktal later sought to have the settlement set aside. In November 1989, the Secretary issued an order rejecting one paragraph of the settlement as contrary to public policy, but otherwise approving the settlement. This court reversed the Secietary’s order in Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir.1991), holding that the Secretary was required to accept or to reject the settlement in its entirety. On remand, the Secretary issued a new order in October 1993 disapproving the settlement and remanding the case to the ALJ for a hearing on the merits. The ALJ finally held a hearing on the merits in February 1996, more than a decade after the original claim was filed. Pri- or to the hearing, Brown & Root twice moved for summary judgment. At the hearing, the ALJ ruled that internal whistle blowing was not protected under Section 210 and the prior rulings of this court, and that the ALJ therefore would not consider Macktal’s internal complaints as support for his claim. In November 1996, the ALJ issued a Recommended Decision and Order granting Brown & Root’s motion for summary judgment. Macktal filed exceptions to the ALJ’s Recommended Decision and Order. In January 1998, after further briefing, the ARB issued a Final Decision and Order dismissing Macktal’s complaint, finding that Macktal had not engaged in any protected activity under the ERA. This timely petition followed. II. Review of the ARB’s Final Decision and Order is governed by the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2). This court must affirm the Secretary’s decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, or unless the decision is not supported by substantial evidence. 5 U.S.C. § 706(2)(A). Agency interpretations of circuit law, however, are reviewed de novo. See Harris v. Railroad Retirement" }, { "docid": "11899906", "title": "", "text": "follow the procedures for reconsideration set forth in the statute. See, e.g., Civil Aeronautics Bd., 367 U.S. at 329, 81 S.Ct. 1611 (“[W]e are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute.”). The agency must also give notice to the parties of its intent to reconsider, and such reconsideration must occur within a reasonable time. Macktal, 286 F.3d at 826 (citing Bookman, 453 F.2d at 1265). Finally, an agency may not reconsider in a manner that would be arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(a); Macktal, 286 F.3d at 826. These limitations on the exercise of inherent power are uncontroversial and are not at issue in this case. Here, no statute prohibited Commerce’s review, nor were there procedures specified in any applicable statutory provision that Commerce failed to follow. While Commerce labeled its proceeding as a “changed circumstances review,” its actions, as discussed supra, are not properly characterized as such. For this reason, the trial court was not required to decide whether Commerce’s actions were consistent with § 1675(b)(1). Instead, the trial court correctly ruled that Commerce, under the circumstances presented, acted within its inherent authority to protect the integrity of its proceedings from fraud. We agree with that ruling and hold that Commerce possesses inherent authority to protect the integrity of its yearly administrative review decisions, and to reconsider such decisions on proper notice and within a reasonable time after learning of information indicating that the decision may have been tainted by fraud. In this case, Commerce acted within a reasonable time after learning of the fraud, gave the parties proper notice, and thus, acted lawfully under its inherent authority in reconsidering the 1997-1998 administrative review. 2. Ripeness The trial court concluded that Commerce’s stated intention to reopen the sunset review proceeding was ripe for judicial review because, inter alia, it “qualifie[d] as a final determination by the agency.” TKS, 473 F.Supp.2d at 1359; see also id. (“[T]he agency formally" }, { "docid": "15117062", "title": "", "text": "ALJ ruled that internal whistle blowing was not protected under Section 210 and the prior rulings of this court, and that the ALJ therefore would not consider Macktal’s internal complaints as support for his claim. In November 1996, the ALJ issued a Recommended Decision and Order granting Brown & Root’s motion for summary judgment. Macktal filed exceptions to the ALJ’s Recommended Decision and Order. In January 1998, after further briefing, the ARB issued a Final Decision and Order dismissing Macktal’s complaint, finding that Macktal had not engaged in any protected activity under the ERA. This timely petition followed. II. Review of the ARB’s Final Decision and Order is governed by the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2). This court must affirm the Secretary’s decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, or unless the decision is not supported by substantial evidence. 5 U.S.C. § 706(2)(A). Agency interpretations of circuit law, however, are reviewed de novo. See Harris v. Railroad Retirement Board, 3 F.3d 131, 133 (5th Cir.1993). III. Macktal argues that the ARB erred in finding that he had not engaged in any protected activity under Section 210 prior to his termination by Brown & Root. He contends that the ARB misinterpreted circuit precedent to foreclose recovery. We disagree. Though our reasoning differs somewhat from that of the ARB, we nonetheless conclude that the ARB acted correctly in dismissing Macktal’s complaint. Prior to the 1992 Amendments to the ERA, Section 210 provided as follows: No employer ... may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)— (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as" }, { "docid": "21742626", "title": "", "text": "Nordell of her right to request reopening before the EEOC and gave no indication what effect such a request would have on the thirty-day deadline. Moreover, when the Commission denied Nordell’s request to reopen her case, it notified her that “[t]he appellant may have a right to file a civil action in the appropriate United States District Court within 30 calendar days from receipt of the decision on the request to reopen and reconsider.” The cover letters to the initial decision and the denial of the request to reopen identified both actions as “the final decision of the Equal Employment Opportunity Commission.” Deference is due the authoritative interpretation an agency gives to its own regulations or to the statute it administers. See, e.g., Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). To carry much weight, however, the interpretation must be publicly articulated some time prior to the agency’s embroilment in litigation over the disputed provision. Given the ambiguity of the administrative pronouncements discussed in the preceding paragraph, we think the most sensible view is that a request for reconsideration of an EEOC opinion, if filed within the time for bringing suit under Title VII, renders the initial decision no longer “final action” and hence extends the deadline for filing a civil action until thirty days following final disposition of the request. This view is consistent with “the general notion that an administrative order is not ‘final,’ for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of.” Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 326, 81 S.Ct. 1611, 1619, 6 L.Ed.2d 869 (1961) (emphasis in original); see also, e.g., 5 C.F.R. § 1201.113 (1984) (request for reconsideration revokes finality of initial decision by Merit Systems Pro tection Board, extending time for seeking judicial review). The rules governing review of federal court decisions operate similarly: a timely request for judicial reconsideration automatically extends the time for filing a notice of appeal or a petition for writ of certiorari. See Fed.R.App.P. 4(a)(4) (appeal from district court judgment);" }, { "docid": "685844", "title": "", "text": "to a hearing only for appeals of “adverse actions” by an agency or by the Civil Service or for appeals on disability retirement. 5 C.F.R. § 772.307. “Adverse actions” by an agency include removals, suspensions, furloughs without pay, and reduction in rank or pay, 5 C.F.R. § 752.101, but not reduction-in-force actions taken under 5 C.F.R. Part 351. 5 C.F.R. § 752.103(b)(3). . Chapter 3-2-i of the Federal Personnel Manual provides that the FEAA “office responsible for adjudicating an appeal in which there is no right to a hearing may grant the parties an opportunity for a personal appearance. . .” It is unclear how a hearing differs from a personal appearance, although the latter appears to be more informal. By letter of June 23, 1977, John Selbmann, Chief Appeals Officer of FEAA’s New York office notified Liguori that he would be granted a personal appearance. The letter stated: A personal appearance is generally informal and although an occasional “witness” may be allowed, statements are not normally made under oath. The proceedings may be characterized as a discussion of the issues. A verbatim transcript of the record will be made. Administrative Record [hereinafter AR] at 633. . There is no right of review of a decision of the FEAA Appeals Officer. 5 C.F.R. § 722.309(b). However, a party may request the ARB to reopen and reconsider such a decision. 5 C.F.R. § 772.310(a). The October 13, 1977 decision of the FEAA Appeals Officer stated that Liguori could request reconsideration of the decision by ARB if he submitted information meeting the criteria set out in 5 C.F.R. § 772.310 “within a reasonable time after receipt of this decision” (AR at 585). The letter did not define “reasonable time.” After plaintiff requested reconsideration by letter of June 21, 1978, ARB refused to reopen the decision on the ground that the request had not been timely under the circumstances (AR at 97). Defendants cite no statutory authority for a time limitation on requests by employees for reconsideration. 5 C.F.R. § 772.310 sets a limitation only for such requests by agencies. . 5 C.F.R." }, { "docid": "6501294", "title": "", "text": "review of the decisions of lower courts or administrative agencies). “Reconsider” and “reopen,” on the other hand ordinarily refer to a reexamination of a tribunal’s own decision or order. Section 659(a) prohibits review but does not prohibit reconsideration or reopening. The absence of a prohibition is important because we have long recognized “that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review” as long as it does so reasonably promptly and on notice to the prevailing party. Dun & Bradstreet v. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir.1991). Section 659(a)’s silence on reconsideration or. reopening of Commission orders strongly suggests that the Commission has the inherent power to reconsider or reopen its own final orders including its deemed orders. The majority, however, holds that because the Commission’s order is only a “deemed” order, it is not subject to reopening or reconsideration. The premise underlying this holding is that the Commission never acquired jurisdiction over the controversy under 29 U.S.C. § 659(c), which grants the Commission jurisdiction to review citations if the employer files a timely notice of contest. In the majority’s opinion, the Commission, never having acquired jurisdiction, cannot reopen its order. In 1981, the Third Circuit decided this jurisdictional question in favor of the Commission, holding that “the Commission must have had jurisdiction at some point [because] [i]f it never had jurisdiction, the citations would be final orders of a Commission which never had jurisdiction, and thus would have no effect.” J.I.Hass Co., Inc. v. OSHRC, 648 F.2d 190, 193 (3d Cir.1981). I agree — whether deemed or actual — an order of the Commission must be one that is within its jurisdiction and thus subject to reopening or reconsideration. The Secretary also argues that even if the Commission has jurisdiction to reopen or reconsider its orders, it erred by reopening based only on a finding of excusable neglect. The Secretary contends that only facts sufficient to demonstrate equitable tolling will justify reopening a deemed order. Because" }, { "docid": "16720016", "title": "", "text": "recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other.” Civil Aeronautics Bd., v. Delta Air Lines, Inc., 367 U.S. 316, 321, 81 S.Ct. 1611, 1616, 6 L.Ed.2d 869 (1961) (footnote omitted). The authority of an agency to reconsider an earlier determination may be expressly conferred by statute. Marshall v. Monroe & Sons, Inc. 615 F.2d 1156, 1158 (6th Cir.1980); Bookman v. United States, 197 Ct.Cl. 108, 453 F.2d 1263, 1265 (1972). Even where there is no express reconsideration authority for an agency, however, the general rule is that an agency has inherent authority to reconsider its decision, provided that reconsideration occurs within a reasonable time after the first decision. Dun & Bradstreet Corp. Found. v. United States Postal Serv., 946 F.2d 189, 193 (2d Cir.1991); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977); Bookman, 453 F.2d at 1265. The Secretary of the Interior has the inherent authority to reconsider an earlier agency decision. Ideal Basic Indus., Inc. v. Morton, 542 F.2d 1364, 1367-68 (9th Cir.1976). The district court found that SMCRA neither specifically authorizes OSM to reconsider its VER determinations nor contains the sort of broad language that would constitute implicit statutory authorization for reconsideration. However, Section 201(c) of SMCRA, 30 U.S.C. § 1211(c), entitled “Duties of Secretary,” provides, in part, that [t]he Secretary, acting through [OSM], shall— (1) ... review and vacate or modify or approve orders and decisions.... * * its * * We find that this statutory provision expressly authorized OSM to review and vacate the erroneous 1988 VER determination. The applicable regulations also indicate that OSM has the authority to reconsider an earlier determination. Subpart A of Volume 43 of the Code of Federal Regulations, which is entitled “Public Lands: Interior,” sets forth general rules and regulations governing administrative appeals, including appeals to the Board of Land Appeals, which has juris diction over administrative appeals involving SMCRA. 43 C.F.R. § 4.1(b)(3) (1991). Section 4.5, entitled “Power of the Secretary and Director,” provides, in part: (a) Secretary. Nothing in this" }, { "docid": "7465595", "title": "", "text": "568-569. The same principle applies to review of action of an administrative agency. The present action is barred by the failure to comply with the jurisdictional requirements. Petition dismissed. SEYMOUR, Circuit Judge, concurring: I agree this action is barred by Selco’s failure to comply with jurisdictional requirements. However, I take issue with the majority’s conclusion that a petition for reconsideration does not alter the time for filing an appeal. The majority’s interpretation rests upon the requirement in 7 U.S.C. § 136n(b) that a notice of appeal be filed within sixty days after entry of the EPA’s final order. The holding emphasizes that an EPA regulation rather than the language of the statute itself provides for a reconsideration petition. These considerations are not controlling. In Outland v. CAB, 284 F.2d 224 (D.C.Cir.1960), the issue was whether a petition for rehearing before the Civil Aeronautics Board changed the time from which judicial review must be sought. The statute there, 49 U.S.C. § 1486(a), contained a sixty-day limitations period and had no provision regarding motions for reconsideration. The court held that “when a motion for rehearing is made, the time for filing a petition for judicial review does not begin to run until the motion for rehearing is acted upon by the Board.” Id. at 228. The Supreme Court cited this very language in American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 541, 90 S.Ct. 1288, 1293, 25 L.Ed.2d 547 (1970), where it held that an order by the ICC was not so final as to bar the Commission’s later reopening of the record. See also CAB v. Delta Air Lines, 367 U.S. 316, 326, 81 S.Ct. 1611, 1619, 6 L.Ed.2d 869 (1961). Significant policy reasons dictate that judicial review not precede an administrative agency’s resolution of a motion to reconsider its decision: “[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary. Practical considerations, therefore, dictate that when a petition for rehearing is filed, review may properly be deferred until" }, { "docid": "15117072", "title": "", "text": "further harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these matters.” The ARB observed that “[i]t would have required considerable mental gymnastics on the part of Brown & Root managers to recognize that, when Macktal said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures.” Macktal v. Brown & Root, Inc., 86-ERA-23, slip op. at 5 (Sec’y Dec. Jan. 6, 1998). Thus, the ARB concluded, “[w]e agree with the ALJ that a reasonable person could only interpret Macktal’s request as a resignation and could not be held responsible for failure to intuit what Macktal now claims was on his mind.” Id., slip op. at 5-6. The ARB’s conclusion is clearly supported by substantial evidence, and we do not find it to be arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Thus, the Final Decision and Order of the ARB must be affirmed. IV. For the foregoing reasons, Macktal’s petition for review is DENIED and the Final Decision and Order of the ARB is AFFIRMED. . In 1992, Congress amended the ERA to include explicit protection for internal complaints. The act as amended protects an employee who \"notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954,” 42 U.S.C. § 5851(a)(1)(A), and an employee who \"refused to engage in any practice made unlawful by this chapter or the Atomic Energy Act of 1954, if the employee has identified the alleged illegality to the employer,” 42 U.S.C. § 5851(a)(1)(B). These amendments do not apply here, because the present claim was filed well before the October 24, 1992 date of enactment. . Brown & Root argues that, irrespective of the merits, Macktal’s claim has been extinguished by his refusal to return settlement funds he received from Brown & Root. That issue was addressed in an earlier order by the Secretary of Labor, dated July 11, 1995, which Brown & Root did not appeal. Regardless, it was not" }, { "docid": "13339736", "title": "", "text": "the merits of the controversy. In spite of this clear statutory scheme, the Commission contends that since it has not adopted a dissimilar rule, Title 29 Ü.S.C., § 661(f) requires that we read .Rule 60(b), F.R.Civ.P. into the Act, thus giving the Commission power to set aside a f.inal judgment if there has been, inter alia, excusable neglect. We find this contention to be without merit. The Supreme Court in Civil Aeronautics Board v. Delta Air Lines, Inc., 1961, 367 U.S. 316, 334, 81 S.Ct. 1611, 1623, 6 L.Ed.2d 869, denied the CAB the right to reconsider one of its final decisions, stating: “In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute.” Looking to the statute before us, it is clear that in addition to the thirty day discretionary review period, discussed supra, in which the Commission may reconsider its own decisions or those of its ALJ’s, the Act specifically authorizes the Commission to reconsider and modify a final order, as to the abatement period only, when certain conditions precedent are met. The party against whom the citation was issued must show “a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control.” Title 29, U.S.C., § 659(c). The Congressional intent for this portion of the Act was clearly explained by its drafter, the Senate Committee on Labor and Public Welfare: “It is anticipated that in many cases an employer will choose not to file a timely challenge to a citation when it is issued, on the assumption that he can comply with the period allowed in the citation for abatement of the violation. In some such cases the em-pjoyer may subsequently find that despite his good faith efforts to comply, abatement cannot be completed within the" }, { "docid": "7880215", "title": "", "text": "The Union’s argument stems from the general notion that an administrative order is not “final” for purposes of judicial review until the agency has disposed of all outstanding petitions for reconsideration. See Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 326, 81 S.Ct. 1611, 1619, 6 L.Ed.2d 869 (1961). Accordingly, “the filing of ... a timely petition for agency reconsideration[ ] extends the time for appealing from the original deci sion.” I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 280, 107 S.Ct. 2360, 2366, 96 L.Ed.2d 222 (1987); accord Arch Mineral Corp. v. Director, Office of Workers’ Compensation Programs, U.S. Dept. of Labor, 798 F.2d 215, 218-19 (7th Cir.1986) (finding that a clear majority of cases involving appellate review of administrative decisions hold that, where the applicable statute and administrative regulations are silent, the filing of a motion for reconsideration suspends the time for filing a petition for review). The Union thus argues that a request for interpretation under subdivision (m) of the RLA should likewise toll the running of the two-year statute of limitations until such interpretation is rendered. The Union’s reasoning is flawed in several respects. First, the RLA specifically addresses the question of the finality of Board awards. Subdivision (m) states unequivocally that a “copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute.” 45 U.S.C. § 153 First (m) (emphasis added). Clearly, Congress meant an award to be final and binding at this point. In addition, Congress provided no means by which the Board could reconsider its award. The Board is a creature of Congress and as such must operate within the confines of its congressional mandate. See Civil Aeronautics, 367 U.S. at 322, 81 S.Ct. at 1617. Subdivision (m) provides the Board with only the authority to interpret its award and then only upon a request by either party. The Board has not been granted authority to alter or in any way modify its award. Once an award is handed down there is" }, { "docid": "16720015", "title": "", "text": "did possess VER in the four tracts. The district court reasoned, first, that nothing in SMCRA indicated, either explicitly or implicitly, that Congress had authorized OSM to reverse its “final” decisions. Second, the court found that, even assuming an inherent power to reconsider, Belville’s change of position in reliance on the 1988 determinations precluded reconsideration. Finally, in the district court’s view, although reconsideration for purposes of correcting clerical errors is within an agency’s inherent power, OSM’s reconsideration impermissibly was motivated by a change in policy. Therefore, concluded the court, OSM was without authority to reconsider and reverse any of its 1988 determinations. Whether OSM had the authority, under the circumstances of this case, to reconsider and reverse its earlier VER determinations is unquestionably an issue of law. Therefore, we review de novo the district court’s conclusion on this issue. We hold that OSM had the authority to reconsider and reverse these determinations to the extent that they were erroneous. In determining whether agency reconsideration is proper in a given case, “two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other.” Civil Aeronautics Bd., v. Delta Air Lines, Inc., 367 U.S. 316, 321, 81 S.Ct. 1611, 1616, 6 L.Ed.2d 869 (1961) (footnote omitted). The authority of an agency to reconsider an earlier determination may be expressly conferred by statute. Marshall v. Monroe & Sons, Inc. 615 F.2d 1156, 1158 (6th Cir.1980); Bookman v. United States, 197 Ct.Cl. 108, 453 F.2d 1263, 1265 (1972). Even where there is no express reconsideration authority for an agency, however, the general rule is that an agency has inherent authority to reconsider its decision, provided that reconsideration occurs within a reasonable time after the first decision. Dun & Bradstreet Corp. Found. v. United States Postal Serv., 946 F.2d 189, 193 (2d Cir.1991); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977); Bookman, 453 F.2d at 1265. The Secretary of the Interior has the inherent authority to reconsider an earlier agency decision. Ideal Basic Indus., Inc. v." }, { "docid": "1982824", "title": "", "text": "those authorities conferred upon it by Congress”) (internal quotation omitted, emphasis added in original), and the fact that, unlike other statutes delegating rulemak-ing authority, the EPCA consumer appliance provisions do not provide for reconsideration following prescription of a final rule establishing an efficiency standard. Cf. 42 U.S.C. § 7607(d)(7)(B) (2003) (provision of Clean Air Act allowing for reconsideration of final rule by agency in limited circumstances); see also Laminators Safety Glass Ass’n v. Consumer Prod. Safety Comm’n, 578 F.2d 406, 410 (D.C.Cir.1978) (noting that, unlike other statutes governing promulgation and review of regulations, Consumer Product Safety Act did not provide for reconsideration of regulations published as final rules and thus such a request did not toll time limits found in portion providing for judicial review). DOE cites a number of cases to support its claim that it possesses an inherent power to reconsider a final rule following its announcement in the Federal Register. But as petitioners note, these cases either do not support the proposition or simply recognize the power to reconsider decisions reached in individual cases by agencies in the course of exercising quasi-judicial powers, which are distinct from the legislative powers and their attendant procedures involved in rulemaking. See, e.g., The Dun & Bradstreet Corp. Found, v. USPS, 946 F.2d 189, 193 (2d Cir.1991) (noting, in case involving request by not-for-profit for refund of bulk rate postage paid, that in administrative cases agency generally has power to reconsider both interim and final decisions); Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir.1980) (noting EEOC District Director had power to rescind his right-to-sue letter in employment discrimination case based not only on regulation allowing for reconsideration of a determination of reasonable cause, but also on the power to reconsider that accompanies the power to decide in the first instance); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977) (noting power of the Civil Service Commission to reopen and reconsider decision on wrongful termination claim). DOE also cites to section 553(e) of the APA to support its claim to an inherent power to reconsider a final rule, but this" }, { "docid": "6501293", "title": "", "text": "60(b)” to reopen an order that has been deemed an order of the Commission by virtue of 29 U.S.C. § 659(a). Op. at 227. Section 659(a) provides in pertinent part: If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, ... the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. (emphasis added). In contrast, I believe there are two central issues: (1) whether the Commission has the inherent authority to reconsider or reopen its own deemed orders and (2) if so, whether the excusable neglect standard set forth in Rule 60 of the Federal Rules of Civil Procedure should be used to determine if reopening is merited. “Review” used by itself suggests an examination of the determination of an inferior tribunal. See Black’s Law Dictionary 1320 (7th ed.1999) (describing as forms of “review,” appellate review of the decisions of lower courts or administrative agencies). “Reconsider” and “reopen,” on the other hand ordinarily refer to a reexamination of a tribunal’s own decision or order. Section 659(a) prohibits review but does not prohibit reconsideration or reopening. The absence of a prohibition is important because we have long recognized “that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review” as long as it does so reasonably promptly and on notice to the prevailing party. Dun & Bradstreet v. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir.1991). Section 659(a)’s silence on reconsideration or. reopening of Commission orders strongly suggests that the Commission has the inherent power to reconsider or reopen its own final orders including its deemed orders. The majority, however, holds that because the Commission’s order is only a “deemed” order, it is not subject to reopening or reconsideration. The premise underlying this holding is that the Commission never acquired jurisdiction" }, { "docid": "11899905", "title": "", "text": "F.2d at 12; see also Elkem Metals, Com. v. United States, 193 F.Supp.2d 1314, 1321 (Ct. Int’l Trade 2002) (“A finding that the ITC has the authority to reconsider a final determination is particularly appropriate where after-discovered fraud is alleged.”). As the Second Circuit observed in Alberta Gas, “It is hard to imagine a clearer case for exercising this inherent power [to reconsider] than when a fraud has been perpetrated on the tribunal in its initial proceeding.” 650 F.2d at 13. An agency’s inherent authority to reconsider its decisions is not without limitation, however. An agency cannot, for example, exercise its inherent authority in a manner that is contrary to a statute. Macktal, 286 F.3d at 825; Bookman, 453 F.2d at 1265 (observing agency’s authority to reconsider “absent contrary legislative intent or other affirmative evidence” indicating lack of such power). Thus, an agency obviously lacks power to reconsider where a statute forbids the exercise of such power. Similarly, in situations where a statute does expressly provide for reconsideration of decisions, the agency is obligated to follow the procedures for reconsideration set forth in the statute. See, e.g., Civil Aeronautics Bd., 367 U.S. at 329, 81 S.Ct. 1611 (“[W]e are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute.”). The agency must also give notice to the parties of its intent to reconsider, and such reconsideration must occur within a reasonable time. Macktal, 286 F.3d at 826 (citing Bookman, 453 F.2d at 1265). Finally, an agency may not reconsider in a manner that would be arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(a); Macktal, 286 F.3d at 826. These limitations on the exercise of inherent power are uncontroversial and are not at issue in this case. Here, no statute prohibited Commerce’s review, nor were there procedures specified in any applicable statutory provision that Commerce failed to follow. While Commerce labeled its proceeding as a “changed circumstances review,” its actions, as discussed supra, are not" }, { "docid": "1982825", "title": "", "text": "individual cases by agencies in the course of exercising quasi-judicial powers, which are distinct from the legislative powers and their attendant procedures involved in rulemaking. See, e.g., The Dun & Bradstreet Corp. Found, v. USPS, 946 F.2d 189, 193 (2d Cir.1991) (noting, in case involving request by not-for-profit for refund of bulk rate postage paid, that in administrative cases agency generally has power to reconsider both interim and final decisions); Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir.1980) (noting EEOC District Director had power to rescind his right-to-sue letter in employment discrimination case based not only on regulation allowing for reconsideration of a determination of reasonable cause, but also on the power to reconsider that accompanies the power to decide in the first instance); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977) (noting power of the Civil Service Commission to reopen and reconsider decision on wrongful termination claim). DOE also cites to section 553(e) of the APA to support its claim to an inherent power to reconsider a final rule, but this provision simply establishes a party’s right to petition an agency to initiate a new rulemaking, including a rulemaking to amend or rescind a final rule prescribed by an agency, that requires full notice and comment. See 5 U.S.C. § 553(e) (2003); see, e.g., Wis. Elec. Power Co. v. Costle, 715 F.2d 323, 325, 328 (7th Cir.1983) (noting, where party filed request for reconsideration under Clean Air Act that did not fall into any of the limited categories permitting reconsideration of final rules, EPA properly treated it as a request to initiate rulemaking to repeal the final rule under § 553(e)). And while this provision ordinarily would, in effect, enable an agency to reconsider a final rule through an amendment or rescission process, DOE is constrained in a new rulemaking proceeding by the unique operation of section 325(o)(l). DOE, because it concedes that section 325(o)(l) would constrain its ability to weaken a standard in a newly initiated rulemaking proceeding to amend or rescind a standard, complains that if we do not recognize an inherent power to" }, { "docid": "13339735", "title": "", "text": "full Commission review. When the thirty day statutory limit has been allowed to run out, no Commission member having directed review, the report of the ALJ becomes the final order of the Commission by operation of law. Title 29, U.S. C., § 661 (i). In those situations where review is timely directed, the Commission will issue its own order affirming, modifying or vacating the ALJ’s order. Title 29, U.S.C., § 659(a). This Commission order then goes through its own thirty day review period, thus allowing the Commission time to reconsider. The statutory scheme clearly does not permit any order which purports to dispose of the entire controversy to become the final order of the Commission unless it has passed through a thirty day discretionary review period, within which no Commission member has directed full Commission review. Once an order does achieve this finality, the sole statutory recourse for an aggrieved party is by petition to the appropriate court of appeals. Title 29, U.S.C., § 660. The statute makes no provision for further Commission consideration of the merits of the controversy. In spite of this clear statutory scheme, the Commission contends that since it has not adopted a dissimilar rule, Title 29 Ü.S.C., § 661(f) requires that we read .Rule 60(b), F.R.Civ.P. into the Act, thus giving the Commission power to set aside a f.inal judgment if there has been, inter alia, excusable neglect. We find this contention to be without merit. The Supreme Court in Civil Aeronautics Board v. Delta Air Lines, Inc., 1961, 367 U.S. 316, 334, 81 S.Ct. 1611, 1623, 6 L.Ed.2d 869, denied the CAB the right to reconsider one of its final decisions, stating: “In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute.” Looking to the statute before us, it is clear that in addition to the thirty day" }, { "docid": "16720026", "title": "", "text": "the 30-day notice and waiver provisions are inapplicable. In the absence of an ex press time limitation within which OSM may, on its own initiative, reconsider an earlier decision, we must, therefore, determine whether, under the particular facts of this case, the eight months between notice of the 1988 determinations and notice of suspension and reconsideration of those determinations was a “short and reasonable period.” We initially note that neither party has identified unusual circumstances that take this ease outside the general rule. We also note that the eight-month time period involved here is intermediate between the weeks that, at least in the view of some courts, represent a presumptively reasonable period and the years that do not. See, e.g., Gratehouse, 512 F.2d at 1109. Recently, in the context of considering an appeal from a district court decision granting a motion to dismiss under Rule 12(b)(6), the Second Circuit enumerated three factors relevant to a determination of whether an agency reconsideration decision was timely: “We believe that a determination of whether the ‘time-lapse’ [81 weekdays] was reasonable will turn on, among other things, the complexity of the refund decision, whether the decision was factually or legally based, and whether the [agency] acted according to its general procedures for review.” Dun & Bradstreet Corp. Found., 946 F.2d at 194. Another court examined the following factors in concluding that an agency reconsideration decision was untimely: 1) the express time limit for appeals set forth in the regulations had run; 2) legally cognizable property interests had arisen through the initial decision; 3) the plaintiff had acted in reliance on the initial decision; and 4) the agency had attempted to use the pretext of fraud to justify reconsideration. Prieto v. United States, 655 F.Supp. 1187, 1192-93 (D.D.C.1987). To the factors enumerated by these courts we would add another factor we believe to be relevant here: the probable impact of an erroneous agency decision absent reconsideration. Cf. Civil Aeronautics Bd., 367 U.S. at 321, 81 S.Ct. at 1616 (desirability of finality must be weighed against public interest in reaching the correct result). Weighing these factors," }, { "docid": "15117071", "title": "", "text": "distinguish that provision from the other two; it would become a nullity. If the “about to commence” provision is to have any distinct meaning at all, it must encompass some employee actions prior to actual contact with a competent organ of government. A written expression of intent to file a complaint with the NRC falls squarely within that sphere of action. We therefore conclude that Macktal’s memorandum expressing his intention to file a complaint with the NRC was protected activity under the “about to” provision of Section 210. As noted above, however, evidence that the complainant engaged in protected activity is only the first of four prima facie requirements under Section 210. Macktal must also show that the evidence is sufficient to permit an inference that the protected activity was the likely reason for the adverse action. It is at this point that his claim collapses. In addition to expressing his intention to file a complaint with the NRC, Macktal also stated in his memorandum: “In a[n] effort to preserve my health and avoid any further harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these matters.” The ARB observed that “[i]t would have required considerable mental gymnastics on the part of Brown & Root managers to recognize that, when Macktal said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures.” Macktal v. Brown & Root, Inc., 86-ERA-23, slip op. at 5 (Sec’y Dec. Jan. 6, 1998). Thus, the ARB concluded, “[w]e agree with the ALJ that a reasonable person could only interpret Macktal’s request as a resignation and could not be held responsible for failure to intuit what Macktal now claims was on his mind.” Id., slip op. at 5-6. The ARB’s conclusion is clearly supported by substantial evidence, and we do not find it to be arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Thus, the Final Decision and Order of the ARB must be affirmed. IV. For the foregoing" } ]

[ { "docid": "1258263", "title": "", "text": "et seq. Current law on the subject is found in the provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. The chief function of the Act is to serve as a funding vehicle for the states in their efforts to provide educational opportunities for the handicapped. Eberle v. Board of Public Ed. of Sch. Dist. Etc., 444 F.Supp. 41, 43 (D.Penn.1977), aff’d, 582 F.2d 1274 (3d Cir. 1978). One of the prerequisites to receiving federal funds is that each participating state establish a review procedure whereby the parent/guardian of the handicapped child may dispute the educational evaluation and/or placement of his child within the local school system. 20 U.S.C. § 1415. Specifically, after a complaint regarding a child’s placement is made, the state must provide the parent/guardian with an impartial due process hearing on the issue. 14 U.S.C. § 1415(bX2). If following this hearing the parent/guardian is still aggrieved, he may bring his complaint to a federal district court or state court of competent jurisdiction. 20 U.S.C. § 1415(e)(2). This is a limited grant of jurisdiction however since it only authorizes review of claims alleging (1) errors in the evaluation or placement of the handicapped student, or (2) a denial of the Act’s numerous procedural safeguards. See, 20 U.S.C. § 1415(e)(2); Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn. 1978). Thus the issue presented is whether or not one can read into the provisions of the Education for All Handicapped Children Act of 1975 and its statutory predecessors an implied private remedy for damages. The standard for determining whether a private damage remedy is implicit in a statute not expressly providing for one is best enunciated in the Supreme Court case of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The decision noted that there were four relevant factors in such a determination: (1) whether the plaintiff is one of a class for whose especial benefit the statute was enacted, (2) whether there is any legislative intent either explicit or implicit to create or deny such a remedy," } ]

[ { "docid": "23259792", "title": "", "text": "him his federally guaranteed rights by permitting the Commissioner of Education to become a part of the decisional process in his administrative appeal. Accepting the plaintiff’s allegations as true, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109, 99 S.Ct. 1601, 1613, 60 L.Ed.2d 66 (1979), the Court finds that this denial of Rose’s federally protected rights is a sufficient injury in fact to satisfy the requirements of Article III. Furthermore, a favorable decision in this case will redress the injury Rose has suffered, since he will be able to obtain the impartial hearing to which he is entitled. Thus, this Court finds that Rose has standing under Article III to challenge Neb.Rev.Stat. § 43-662. Exhaustion of Administrative Remedies The incident which precipitated Monahan’s involvement in the instant action was the Omaha School Board’s refusal to fund Daniel’s education at George Norris. Shortly after the Board’s decision, Monahan filed this suit under 20 U.S.C. § 1415, challenging the adequacy of the Nebraska administrative procedure for reviewing the placement of handicapped children. Prior to filing suit, however, Monahan never attempted to contest the Board’s decision by utilizing the administrative hearing provided by the Nebraska statutes. The defendants contend that this failure to exhaust the administrative procedures available under Nebraska law prevents Monahan from challenging these procedures under 20 U.S.C. § 1415. The Education of All Handicapped Children Act gives federal district courts jurisdiction to review placement decisions made in the state’s due process hearings. 20 U.S.C. § 1415(e)(2). This grant of jurisdiction empowers the Court not only to determine whether the placement decision was correct, but also to determine whether the state procedure denied the plaintiff of his procedural rights under the Act. Loughran v. Flanders, 470 F.Supp. 110, 113 (D.Conn.1979). Generally, a party desiring to assert the jurisdiction provided by this Act must first exhaust the state’s administrative procedures. Notwithstanding the general rule, a number of courts have held that exhaustion of state administrative procedures is not required when exhaustion would be futile. Armstrong v. Kline, 476 F.Supp. 583, 601-602 (E.D.Pa.1979); Harris v. Campbell, 472 F.Supp. 51, 53-54 (E.D.Va.1979);" }, { "docid": "22951676", "title": "", "text": "a state court of competent jurisdiction or to a district court of the United States. Id. § 1415(e)(2). III. The facts found by the district court are not disputed on appeal. Since District Judge Newcomer’s opinion, reported below as Armstrong v. Kline, 476 F.Supp. 583 (E.D.Pa.1979), sets forth these facts in detail, we shall content ourselves with a review of only those necessary to our decision. A. Education of the Handicapped in Pennsylvania. The Pennsylvania Department of Education (DOE) is the agency charged with the responsibility of providing education to handicapped children in compliance with the Act. Pursuant to the Act, the DOE requires local school districts to prepare an annual individualized educational program (IEP) for each handicapped child. The program is developed subsequent to an evaluation by educators and medical personnel by a multidisciplinary team familiar with the child. The IEP evaluates the child’s current level of ability, establishes the child’s program and placement, and sets long and short term educational goals. After it is formulated, the parents or guardian of the child are permitted to review and comment on the IEP. Although they comply with these procedures, the districts that are defendants in this action refuse to provide or fund more than 180 days per year of education for any child. Id. at 586-87. If the parents are unsatisfied with any aspect of their child’s classification, placement or program, as established in the IEP, they are entitled to an appeal to an impartial hearing examiner. The hearing examiner is appointed by the DOE and may not be an employee of the district or intermediate unit from which the case originates. It is, however, the policy and practice of the DOE to refuse to provide or to fund the provision of education in excess of 180 days per year for any child, handicapped or non-handicapped. In keeping with this policy, the DOE has instructed hearing examiners that they are “without authority to, and may not, order a special education program which is in excess of 180 days per year.” Id. at 587. B. The Plaintiff Class. Although the plaintiff" }, { "docid": "5067806", "title": "", "text": "1415. Ordinarily, this would require dismissal. In this instance, however, there is a question whether Illinois has established an administrative process offering meaningful review. If an exhaustion attempt would be futile, the complaint need not be dismissed for failure to exhaust administrative remedies. See Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979) and cases cited therein. The Illinois Superintendent of Education has stated that the Illinois State Board of Education is “not the appropriate forum to address issues relating to the [GPCRB’s] determinations of allowable cost for related services.” In re Special Education Placement of Cathy S., Administrative Order at 3 (Ill.Bd.Educ. Oct. 17, 1979) (at tached as Exhibit B to Complaint). Defendants have not indicated that there is, in fact, an administrative forum in Illinois in which to review the GPCRB’s determinations of related costs. Nor does the statute creating the GPCRB establish an administrative review process. Ill.Rev.Stat. Ch. 122, § 14-7.02 (Supp.1978). Thus, the court concludes that Illinois has not established a meaningful process of administrative review and excuses plaintiffs’ failure to exhaust administrative remedies under EAH-CA. B. The Rehabilitation Act Similarly, plaintiffs have not exhausted administrative remedies under the Rehabilitation Act. To invoke those remedies, a party may file a written complaint with HEW, which is then required to make a prompt investigation. 45 C.F.R. § 80.-7(b)(c) (1979). If HEW finds that a recipient of federal funds has failed to comply with the Act, HEW may enforce compliance by 1) cutting off federal funds, 2) referring the case to the Department of Justice for prosecution, or 3) proceeding under applicable state or local law. 45 C.F.R. §§ 80.6-80.10, 84.61 (1979). Plaintiffs contend that under Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), exhaustion is not required. In Cannon, the Supreme Court found an implied private right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1976). Plaintiffs rely on a footnote to the Court’s opinion in which the Court, discussing Title IX and Title VI (the administrative remedies for which apply in Rehabilitation Act" }, { "docid": "23277081", "title": "", "text": "her placement in an Omaha junior high school and that Daniel Monahan should remain in the Millard School District at his father’s expense. The court also ordered the Nebraska Commissioner of Education to appoint an impartial hearing officer to hold a second due process hearing on Marla Rose’s educational placement, enjoined the Commissioner from engaging in any review of the hearing officer’s decision, and ordered the Commissioner to implement such decision without modification. We affirm in part and remand for further proceedings consistent with this opinion. We address several preliminary issues before turning to the merits of this appeal. First, we agree with the reasoning of the district court that plaintiff Rose has standing under article III of the United States Constitution to challenge Neb.Rev. Stat. § 43-662. Rose argues that her federally guaranteed procedural rights were violated by the Commissioner’s review of the hearing decision. Accepting this contention as true, Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), we find that Rose has alleged a sufficiently “personal stake in the outcome of the controversy,” id. at 498, 95 S.Ct. at 2205 to invoke the jurisdiction of the federal courts. We also concur with the district court’s conclusion that, in the circumstances, Daniel Monahan was not required to exhaust his administrative remedies under the Nebraska Act. Although the federal framework mandates initial resort to the state administrative process, 20 U.S.C. § 1415(e)(2), exhaustion is not required where it would be futile or where the administrative remedy would be inadequate. Matthews v. Eldridge, 424 U.S. 319, 329-30, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1976); Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub. nom. Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980) cert. denied sub. nom. Scanlon v. Battle, -U.S.-, 101 S.Ct. 3123, -L.Ed.2d-(1981); Loughran v. Flanders, 470 F.Supp. 110, 112-13 (D.Conn.1979). In the present case, Monahan’s claim that the state procedure on its . face conflicts with the Federal Act could not be addressed effectively by the state administrative process. As a final preliminary matter, we approve" }, { "docid": "5067805", "title": "", "text": "Ill.App.3d 663, 292 N.E.2d 569 (2d Dist. 1973). No cases have been uncovered which indicate that a tuition-free education under Article X includes the provision of counseling services. Thus, plaintiffs have not stated a claim for relief under Article X of the Illinois Constitution. Accordingly, the court dismisses plaintiffs’ claim under Article X. IV. Exhaustion of Remedies Defendants assert that the claims under EAHCA and the Rehabilitation Act should be dismissed because plaintiffs have not exhausted their administrative remedies. Defendants’ arguments are rejected for the reasons that follow. A. EAHCA Defendants’ argument under EAHCA is based on 20 U.S.C. § 1415. That section provides that the state or local educational agency is to conduct a hearing on complaints about procedures employed by the state or local educational agency. It also provides that any party aggrieved by the administrative findings may bring a civil action in state or federal court, without regard to the amount in controversy. 20 U.S.C. § 1415 (1976). None of the plaintiffs has attempted to exhaust the administrative remedies prescribed by § 1415. Ordinarily, this would require dismissal. In this instance, however, there is a question whether Illinois has established an administrative process offering meaningful review. If an exhaustion attempt would be futile, the complaint need not be dismissed for failure to exhaust administrative remedies. See Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979) and cases cited therein. The Illinois Superintendent of Education has stated that the Illinois State Board of Education is “not the appropriate forum to address issues relating to the [GPCRB’s] determinations of allowable cost for related services.” In re Special Education Placement of Cathy S., Administrative Order at 3 (Ill.Bd.Educ. Oct. 17, 1979) (at tached as Exhibit B to Complaint). Defendants have not indicated that there is, in fact, an administrative forum in Illinois in which to review the GPCRB’s determinations of related costs. Nor does the statute creating the GPCRB establish an administrative review process. Ill.Rev.Stat. Ch. 122, § 14-7.02 (Supp.1978). Thus, the court concludes that Illinois has not established a meaningful process of administrative review and excuses plaintiffs’ failure to exhaust" }, { "docid": "14279340", "title": "", "text": "a party seeking to invoke federal district court jurisdiction under the EHCA must first exhaust the state administrative procedures provided for in the Act. 20 U.S.C. § 1415(e). The legislative history of the Act, however, reflects the understanding that exhaustion is not a rigid requirement. See Ezratty v. Puerto Rico, 648 F.2d 770, 774 & n.5 (1st Cir. 1981); Monahan v. Nebraska, 645 F.2d 592, 597 (8th Cir. 1981); Sessions v. Livingston Parish School Board, 501 F.Supp. 251, 254 (M.D.La.1980); Doe v. Koger, 480 F.Supp. 225, 228 (N.D.Ind.1979); Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D.Pa.1980); Harris v. Campbell, 472 F.Supp. 51, 53-54 (E.D.Va.1979); Loughran v. Flanders, 470 F.Supp. 110, 112 (D.Conn.1979); New York State Association for Retarded Children, Inc. v. Carey, 466 F.Supp. 479, 486, aff’d, 614 F.2d 644 (2d Cir. 1979). It is undisputed in this case that plaintiffs were not notified by AISD of their administrative rights under the Act as contemplated in 20 U.S.C. § 1415(b)(1)(C). Apparently the District took no notice-triggering action under the Act with respect to the identification, evaluation or educational placement of Gordon. Nor have defendants established that plaintiffs otherwise knew or should have known of the availability of administrative recourse when the unilateral decision to withdraw Gordon from AISD was made in January 1978. The wooden application of the exhaustion doctrine in these circumstances would accord neither with the salutary interests the doctrine is intended to serve, see McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1968), nor with the basic purposes underlying the EHCA. See Gladys J. v. Pearland Independent School District, 520 F.Supp. 869, 873-74 (S.D.Tex.1981). Accordingly, the Court holds that plaintiffs’ action is not barred by their failure to exhaust administrative remedies under the EHCA. B. The Statute of Limitations Plaintiffs’ damage action involves alleged acts or omissions of defendants in connection with the public education of Gordon M. beginning in the fall of 1977. This suit was commenced on" }, { "docid": "22773469", "title": "", "text": "to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. (4) The district courts of the United States shall have jurisdiction of actions brought under this subsection without regard to the amount in controversy. Pub.L. 91-230, Title VI, § 615, as added Pub.L. 94-142, § 5(a), Nov. 29, 1975, 89 Stat. 788. . At trial, the parents allowed themselves and their child to be referred to by their real names. To avoid confusion with our earlier case, we will continue to refer to the parents as Mr. & Mrs. Doe and the child as John. . We later endorsed the availability of equitable reimbursement to a prevailing party in Doe v. Brookline, 722 F.2d 910 (1st Cir.1983). . Any State educational agency, any local educational agency, and any intermediate educational unit which receives assistance under this subchapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies and units. 20 U.S.C. § 1415(a). Section 1415 is entitled “Procedural Safeguards\" and contains the requirements for due process hearings under the Act. See also § 1415(b)(2) and (c). . The Bureau of Special Education Appeals is a bureau within the Division of Special Education of the Department of Education of Massachusetts. . The pertinent language states: \"The term ‘free appropriate public education’ means special education and related services which ... (B) meet the standards of the State educational agency....” 20 U.S.C. § 1401(18). . The subsection provides: The State educational agency will be responsible for assuring that the requirements of this subchapter are carried out and that all educational programs for handicapped children within the State ... will be under the general supervision of the persons responsible for educational programs for handicapped children in the State educational agency and shall meet education standards of the State educational agency. 20 U.S.C. § 1412(6)." }, { "docid": "9758648", "title": "", "text": "hereby ORDERED (1) that this case should be and hereby is remanded to the State Board of Education for a new hearing to be presided over by an impartial hearing officer who shall be selected in a manner which is consistent with the federal statutory requirements and the holding herein. It is further ORDERED (2) that plaintiff be provided by defendants with a full and complete statement of all evidence which they will adduce at the administrative hearing including lists of any witnesses who will testify and any documents which will be introduced at least five (5) days prior to the date set for the hearing. . There can be no doubt that the provisions of federal statutes are controlling. Section 1415(a) provides that any state or local educational agency which receives assistance under Title 20, Chapter 33, Subchapter II — Assistance for Education of All Handicapped Children — “shall establish and maintain procedures in accordance with subsection (b) through (e) of this section.” See, also Campochiaro v. Califano, No. H 78-64 (D.Conn. May 18, 1979); Robert M., as next Friend of Renee K. v. Benton, No. C 79 — 4007 (N.D.Iowa, Aug. 13, 1979). . The report of the review panel indicates that the Vogels would have had a favorable final decision at this level if the Board had set forth conclusions pursuant to 162.961(5) Mo.S.A. . The Board does not discuss the propriety of the referral made on December 20, 1977 which was subsequent to the development of the individualized educational program. . Federal law was effective when the referral to the State was made December 20, 1977. 20 U.S.C. § 1415(b)(1) provides that state procedures shall include prior notice to the parents whenever the local unit proposes to initiate or change placement. 45 C.F.R. 121a.504 provides by regulation that the notice shall be a reasonable time prior to the action contemplated being taken. . Section 1415(c) provides: Review of local decision by State educational agency If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an" }, { "docid": "807890", "title": "", "text": "needs. II. Like its predecessors, the Education for the Handicapped Act and the Education of the Handicapped Amendments of 1974, the EHCA is a funding statute to assist states in initiating, expanding and improving special education programs. See, e. g., Loughran v. Flanders, 470 F.Supp. 110, 114 (D.Conn.1979). Clearly, however, the EHCA is more than a funding statute simpliciter. For state and local education agencies, the Act is both a source of funds and a source of obligations. Armstrong v. Kline, 476 F.Supp. 583, 602 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Commonwealth of Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D.Pa.1980). For handicapped children within the contemplation of the EHCA, see 20 U.S.C. § 1401(1), the Act is a source of a federal statutory, “right to a free appropriate education” in every state electing to receive financial assistance under its auspices. Id. § 1412. See, e. g., Kruelle v. New Castle County School District, 642 F.2d 687 (3rd Cir. 1981); Battle v. Commonwealth, supra; Armstrong v. Kline, supra; Rowley v. Board of Education, 483 F.Supp. 536 (S.D.N.Y.1980); Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn.1978). Finally, the Act guarantees parents or guardians of handicapped children the right to secure the provision of a free appropriate public education to their child, creating both administrative and judicial remedies to this end. 20 U.S.C. § 1415. Generally, courts have construed section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as also providing a private action for enforcement of the right of handicapped children to a free appropriate public education. E. g., S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on other grounds, 616 F.2d 205 (5th Cir. 1980); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978). See also 34 C.R.F. § 104.33 (1979). Section 504 provides:" }, { "docid": "9758649", "title": "", "text": "1979); Robert M., as next Friend of Renee K. v. Benton, No. C 79 — 4007 (N.D.Iowa, Aug. 13, 1979). . The report of the review panel indicates that the Vogels would have had a favorable final decision at this level if the Board had set forth conclusions pursuant to 162.961(5) Mo.S.A. . The Board does not discuss the propriety of the referral made on December 20, 1977 which was subsequent to the development of the individualized educational program. . Federal law was effective when the referral to the State was made December 20, 1977. 20 U.S.C. § 1415(b)(1) provides that state procedures shall include prior notice to the parents whenever the local unit proposes to initiate or change placement. 45 C.F.R. 121a.504 provides by regulation that the notice shall be a reasonable time prior to the action contemplated being taken. . Section 1415(c) provides: Review of local decision by State educational agency If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing. The officer conducting such review shall make an independent decision upon completion of such review. 45 C.F.R. 121a.510, which is the regulation applying to impartial review at State agency level, provides in pertinent part: Administrative appeal: impartial review (a) If the hearing is conducted by a public agency other than the State educational agency, any party aggrieved by the findings and decision in the hearing may appeal to the State educational agency. (b) If there is an appeal, the State educational agency shall conduct an impartial review of the hearing. The official conducting the review shall: (1) Examine the entire hearing record; (2) Insure that the procedures at the hearing were consistent with the requirements of due process; (3) Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights in § 121a.508 apply; (4) Afford the parties" }, { "docid": "22951675", "title": "", "text": "and revised by the local educational agency at least annually. Id. § 1414(a)(5). In order to assure that the IEP is properly formulated to provide a free appropriate public education, the Act prescribes several procedural safeguards. Whenever the local agency proposes to change or refuses to change the identification or evaluation of a child, or the provision of a free appropriate public education to a child, the child’s parents or guardian must be notified, and the parents or guardian must be given the opportunity to present complaints about any such matter. Id. § 1415(b)(1). When a complaint is made, the parents or guardian are entitled to an impartial due process hearing, conducted by a hearing examiner unrelated to the local agency involved in the care of the child, or by the state educational agency. Id. § 1415(b)(2). If the hearing is conducted by a hearing examiner, any aggrieved party may appeal to the state educational agency. Id. § 1415(c). Any party aggrieved by the decision of the state agency has a right to appeal to a state court of competent jurisdiction or to a district court of the United States. Id. § 1415(e)(2). III. The facts found by the district court are not disputed on appeal. Since District Judge Newcomer’s opinion, reported below as Armstrong v. Kline, 476 F.Supp. 583 (E.D.Pa.1979), sets forth these facts in detail, we shall content ourselves with a review of only those necessary to our decision. A. Education of the Handicapped in Pennsylvania. The Pennsylvania Department of Education (DOE) is the agency charged with the responsibility of providing education to handicapped children in compliance with the Act. Pursuant to the Act, the DOE requires local school districts to prepare an annual individualized educational program (IEP) for each handicapped child. The program is developed subsequent to an evaluation by educators and medical personnel by a multidisciplinary team familiar with the child. The IEP evaluates the child’s current level of ability, establishes the child’s program and placement, and sets long and short term educational goals. After it is formulated, the parents or guardian of the child are" }, { "docid": "14279339", "title": "", "text": "AISD summarily passed him through successive grades despite poor and sometimes failing marks. Dissatisfied with Gordon’s progress at AISD and concerned for his physical well being, Gordon’s mother withdrew him from the District in January 1978. Gordon was placed in Angie Nall Hospital, a private residential facility for medically and emotionally impaired children. As a result of plaintiffs’ limited financial resources, Gordon was withdrawn from Angie Nall in 1978 and enrolled in West Briar School, a private facility in Houston, Texas. West Briar does not maintain a special education program, however, and after a near-suicidal episode which resulted in Gordon’s hospitalization in the psychiatric unit of Bellaire General Hospital for four months, school authorities determined that Gordon’s emotional problems prevented him from benefitting from West Briar’s educational program. Thus, in April 1979 Gordon returned to AISD, where he was identified as a handicapped child within the meaning of the EHCA and individualized education program (IEP), although unacceptable to plaintiffs, developed. II DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT A. The EHCA Exhaustion Requirement Generally, a party seeking to invoke federal district court jurisdiction under the EHCA must first exhaust the state administrative procedures provided for in the Act. 20 U.S.C. § 1415(e). The legislative history of the Act, however, reflects the understanding that exhaustion is not a rigid requirement. See Ezratty v. Puerto Rico, 648 F.2d 770, 774 & n.5 (1st Cir. 1981); Monahan v. Nebraska, 645 F.2d 592, 597 (8th Cir. 1981); Sessions v. Livingston Parish School Board, 501 F.Supp. 251, 254 (M.D.La.1980); Doe v. Koger, 480 F.Supp. 225, 228 (N.D.Ind.1979); Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D.Pa.1980); Harris v. Campbell, 472 F.Supp. 51, 53-54 (E.D.Va.1979); Loughran v. Flanders, 470 F.Supp. 110, 112 (D.Conn.1979); New York State Association for Retarded Children, Inc. v. Carey, 466 F.Supp. 479, 486, aff’d, 614 F.2d 644 (2d Cir. 1979). It is undisputed in this case that plaintiffs were not notified by AISD of their administrative rights under the Act as" }, { "docid": "22773470", "title": "", "text": "and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies and units. 20 U.S.C. § 1415(a). Section 1415 is entitled “Procedural Safeguards\" and contains the requirements for due process hearings under the Act. See also § 1415(b)(2) and (c). . The Bureau of Special Education Appeals is a bureau within the Division of Special Education of the Department of Education of Massachusetts. . The pertinent language states: \"The term ‘free appropriate public education’ means special education and related services which ... (B) meet the standards of the State educational agency....” 20 U.S.C. § 1401(18). . The subsection provides: The State educational agency will be responsible for assuring that the requirements of this subchapter are carried out and that all educational programs for handicapped children within the State ... will be under the general supervision of the persons responsible for educational programs for handicapped children in the State educational agency and shall meet education standards of the State educational agency. 20 U.S.C. § 1412(6). . The federal sufficiency of the state’s substantive approach to educating disabled students with a given impairment is determined initially on the basis of the annual plan a state must submit to the federal Department of Education. Except for the review provided by § 1416(b), courts will generally determine the sufficiency of the state’s substantive approach in regard to a named disabled child. Class actions to redress an alleged violation of the statute, however, have been authorized. See Crawford v. Pittman, 708 F.2d 1028 (5th Cir.1983); Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir.1983). See also 121 Cong.Rec. 37416 (Nov. 19, 1975). . See, e.g., 20 U.S.C. §§ 1412-1415; 34 C.F.R. §§ 300.126, 300.220-227, 300.300, 300.304, 300.-402, 300.501. Congressional authorization for state law to supply the interstitial detail of federal statutes and regulations is not novel. Such authorization has been granted by express declaration, see, e.g., 28 U.S.C. § 1346(b) (Federal Tort Claims Act specifically makes situs state law applicable to determine the government’s liability) and implicitly, as by silence, see," }, { "docid": "936881", "title": "", "text": "aggrieved by the findings and decision under subsection (c)... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. (3) During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child. .. . ” (Emphasis added.) Since § 1415(a) applies only to state and local educational units that “receive[ ] assistance under this subchapter”, we understand the receipt of such assistance to be a jurisdictional prerequisite to review under § 1415(e)(2), and, therefore, a matter to be pleaded in the complaint. See Fed.R.Civ.Proc. 8(a). The Town’s original complaint satisfied this requirement only indirectly — by appending and incorporating the Department’s decision, which indicates that the federal statute, P.L. 94-142, and its accompanying regulations apply in this case. See 45 C.F.R. § 121a.2 (1979) (“Applicability [of regulations] to State, local, and private agencies”). The fact of federal funding is confirmed by the subsequently filed papers in No. 81-1112. They show that the Town has amended its complaint to add a count reciting that a Department official \"held a hearing on whether to freeze federal funds for aid to the handicapped to Plaintiff under Title 20 U.S.C. § 1414(b)(2)(A).” A more direct statement of jurisdiction from the outset would have been preferable. . This count also asserted jurisdiction based on “the provisions of Title 42 U.S.C. § 1983 and Title 28 U.S.C. § 1343 and Title 20 U.S.C. § 1331____” . The Town moved that this order be stayed pending our" }, { "docid": "13033281", "title": "", "text": "the EAHCA. We agree with the district court that, under the circumstances of this case, exhaustion of administrative remedies was not required. The EAHCA provides for initial recourse to state administrative procedures before an action is brought in district court. The Act provides that whenever a complaint has been received, the parents or guardian of a handicapped child shall be afforded a “due process hearing” conducted either by the state educational agency or by the local educational agency or intermediate educational unit, as determined by state law. 20 U.S.C. § 1415(b)(2). In Oregon, the hearing is conducted by the local school district or, in some cases, the Children’s Services Division. O.A.R. 581-15-80, 581-15-81. Any party aggrieved by the findings and decision made in such a hearing may appeal to the state educational agency. 20 U.S.C. § 1415(c). Finally, any party aggrieved by the findings and decision made at the end of the state administrative procedures has the right to bring an action in the district court. 20 U.S.C. § 1415(e)(2). The courts have recognized an exception to the general rule that the administrative remedies provided by the EAHCA must be exhausted before an action may be brought in the district court. Exhaustion is not required where it would be futile or where the administrative remedies available would be inadequate. See Honig v. Doe, 108 S.Ct. at 606; Smith v. Robinson, 468 U.S. 992, 1014 n. 17, 104 S.Ct. 3457, 3469 n. 17, 82 L.Ed.2d 746 (1984); Doe by Gonzalez v. Maher, 793 F.2d 1470, 1490 (9th Cir.1986); Monahan v. State of Neb., 645 F.2d 592, 597 (8th Cir.1981); Wilson v. Marana Unified Sch. Dist. of Pima County, 735 F.2d 1178, 1181 (9th Cir.1984); Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub. nom. Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.1980), cert. denied 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Christopher T. v. San Fran. Unif. Sch. Dist., 553 F.Supp. 1107, 1115 (N.D.Cal.1982). To hold otherwise would impose an unnecessary and unjustified burden on the parents and guardians of handicapped children. Armstrong, 476" }, { "docid": "18299314", "title": "", "text": "615(e)(2) of the Education for Handicapped Act, 20 U.S.C. § 1415(e)(2), authorizes an action in a federal district court by a party aggrieved by the decision of the hearing officer or the state education department in states where appeal to that department is available. The Court of Appeals for the Second Circuit has interpreted this section to permit an action only after the plaintiff has pursued the administrative remedies provided for in the act, unless recourse to them would be futile. See, e.g., Riley v. Ambach, 668 F.2d 635 (2d Cir. 1981). The same exhaustion requirements have been applied to actions claiming violations of section 504 of the Rehabilitation Act and 42 U.S.C. § 1983, although those sections do not contain the same procedural provisions as does the Education for Handicapped Act. See Jose P. v. Ambach, 669 F.2d 865 et al. (2d Cir. 1982) (§ 1983); Riley v. Ambach, supra (by implication § 504); Smith v. Ambach, supra (§ 504); Lombardi v. Ambach, 522 F.Supp. 867 (E.D.N.Y.1981) (§ 1983 and § 504). Exhaustion of administrative remedies serves two important ends. Riley v. Ambach, supra, at 639-40. First, the administrative record developed by persons with educational expertise may illuminate the technical questions as to the educational services appropriate for a child. Second, the administrative process may resolve some disputes and thereby forestall lengthy and costly trials. However, as noted, a plaintiff need not exhaust remedies from which no relief may be had. Thus, plaintiffs have not been required to pursue administrative procedures where the issues are not technical and the administrative process has proven slow and ineffective, Jose P. v. Ambach, supra, where plaintiffs seek interim relief and the effect of requiring exhaustion would be to deny such relief, Vander Malle v. Ambach, 673 F.2d 49 (2d Cir. 1982), or where there is no possibility of a favorable administrative decision, id. citing Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 781 (1981). On August 26," }, { "docid": "5009685", "title": "", "text": "to the state procedure would be futile.” See, e. g., Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634, 638 (S.D.Tex.1978); Percy v. Brennan, 384 F.Supp. 800 (S.D.N.Y.1974). The Supreme Court has determined that futility exists when a “state administrative agency was found to have predetermined the issue before it.” Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). See, e. g., Harris v. Campbell, 472 F.Supp. 51 (E.D.Va.1979); Romano v. Kirwan, 391 F.Supp. 643, 644 (W.D.N.Y.1975), vacated and remanded on other grounds, 425 U.S. 929, 96 S.Ct. 1656, 48 L.Ed.2d 170 (1976) (challenge to person who promulgates a regulation is a futile gesture). Defendant Ambach has indisputably predetermined the issues raised in this case. The Commissioner has explicitly stated that the 50% discrepancy test is entirely consistent with the “severe” discrepancy standard of 45 CFR 121a.541 and that residential treatment is never appropriate for learning disabled children. In a case strongly analogous to the one before this Court, Armstrong v. Kline, 476 F.Supp. 583 (E.D.Pa.1979), plaintiffs challenged Pennsylvania’s 180-day limitation on publicly funded education to handicapped children. The court there specifically ex empted the suit from the exhaustion requirement of section 1415 since resort to state remedies would be futile and since prompt relief was required: “If plaintiffs had tried to challenge defendants’ 180 day rule through the Commonwealth’s due process procedures, their efforts would have been futile because of defendants’ instructions to hearing examiners that such a program would not be available and that the hearing examiners were without authority to order it.” Id. at 587-88. In Armstrong, the court based the lack of an exhaustion requirement on legislative intent as well as on legal precedent. Id. at 602. Similarly, in this case prompt relief is required, and it would be pointless to subject plaintiffs to a process culminating in an appeal to the person who has promulgated the regulations and has upheld their validity. Finally, the Court notes that three" }, { "docid": "13634380", "title": "", "text": "45 C.F.R. §§ 80.6-80.10 and Pt. 81. We are not, however, concerned only with the Rehabilitation Act procedures. The case was also brought pursuant to the statutory scheme created by the Education of the Handicapped Act of 1975, which has its own administrative machinery. 45 C.F.R. Pt. 121a. As discussed below, exhaustion of that machinery may serve to comply with both the provisions of that act and section 504 of the Rehabilitation Act. II. The Private Right of Action Under Section 615 of the Education of the Handicapped Act of 1975, 20 U.S.C. § 1415 There is a significant overlap between the Rehabilitation Act of 1973, as applicable to educational programs receiving federal assistance, and the Education of the Handicapped Act of 1975, which conditions the receipt of funds made available under the 1975 Act. It is undisputed at this point that defendants’ conduct is covered by both statutes. Plaintiffs allege that the right to a “free, appropriate” education was denied in violation of both laws. Plaintiffs clearly have complied with the administrative requirements for review under 20 U.S.C. § 1415. Plaintiffs made administrative claims on the basis of the denial of an appropriate education and on the basis that they were entitled to compensation for expenses in hiring a private tutor for David Boxall. Both claims were pursued through the administrative machinery set up by HEW regulations published at 45 C.F.R. §§ 121a.510-512. Plaintiffs requested a Fair Hearing pursuant to 45 C.F.R. § 121a.506, a Fair Hearing Panel met and each decision was appealed to and decided by State appeals officers. According to 20 U.S.C. § 1415(e), there is a right to sue in the federal district courts to review adverse determinations resulting from the hearing process. The question then is whether plaintiffs needed to exhaust both these administrative remedies and the remedies provided under the Rehabilitation Act. Plaintiffs note that under the regulations published at 45 C.F.R. § 84.36, compliance with the safeguards of 20 U.S.C. § 1415 is sufficient to meet the procedural safeguards implicit in section 504 of the Rehabilitation Act. Although this provision goes to" }, { "docid": "23259793", "title": "", "text": "suit, however, Monahan never attempted to contest the Board’s decision by utilizing the administrative hearing provided by the Nebraska statutes. The defendants contend that this failure to exhaust the administrative procedures available under Nebraska law prevents Monahan from challenging these procedures under 20 U.S.C. § 1415. The Education of All Handicapped Children Act gives federal district courts jurisdiction to review placement decisions made in the state’s due process hearings. 20 U.S.C. § 1415(e)(2). This grant of jurisdiction empowers the Court not only to determine whether the placement decision was correct, but also to determine whether the state procedure denied the plaintiff of his procedural rights under the Act. Loughran v. Flanders, 470 F.Supp. 110, 113 (D.Conn.1979). Generally, a party desiring to assert the jurisdiction provided by this Act must first exhaust the state’s administrative procedures. Notwithstanding the general rule, a number of courts have held that exhaustion of state administrative procedures is not required when exhaustion would be futile. Armstrong v. Kline, 476 F.Supp. 583, 601-602 (E.D.Pa.1979); Harris v. Campbell, 472 F.Supp. 51, 53-54 (E.D.Va.1979); Loughran v. Flanders, supra, 470 F.Supp. at 112; Campochiaro v. Califano, No. H-78-64, slip op. at 4 (D.Conn. May 18, 1978); New York State Association for Retarded Children, Inc. v. Carey, supra, 466 F.Supp. at 486. Given the nature of Monahan’s claim, his pursuit of administrative relief would be a futile gesture. The gravamen of Monahan’s complaint is that the Nebraska statutes create an administrative procedure which violates the mandates of the federal law. In essence, the plaintiff claims that he is faced with an ironclad procedure which the Nebraska statutes require to be followed in all hearings held to review the placement of a handicapped child. Such a claim cannot be resolved in. the due process hearings themselves, since the persons conducting the hearings are without authority to ignore the procedures specifically mandated by state law. Thus, it would be a futile gesture for Monahan to attempt to resolve this dispute in an administrative hearing. The Court therefore finds that Monahan need not exhaust his state administrative remedies before bringing an action under 20" }, { "docid": "5009655", "title": "", "text": "school districts. A district which applies for funding to the State Department of Education must provide assurances that it will expend its monies in conformity with federal and state requirements, including the proper identifi cation, location and evaluation of handicapped children, 20 U.S.C. § 1414(a)(lXA), and the preparation of an individual education program (“IEP”) for each child found to be handicapped. 20 U.S.C. § 1412(4). See New York Education Law 4402. In New York, a child is classified and his IEP is developed by the Committee of the Handicapped (“COH”) of the local school district. New York Education Law 4402.1(b)(l)-(3). An additional federal requirement imposed on participating states is the availability of procedures whereby the evaluation and placement of the child may be challenged and reviewed. 20 U.S.C. § 1415. The procedures in New York include the right to appeal the decision of the COH to an impartial hearing officer; if the hearing officer affirms the recommendation of the COH, the aggrieved party may take a further appeal to the Commissioner of Education. New York Education Law 4404.1-2. Under federal law, a party may challenge the Commissioner’s decision in state or federal court. 20 U.S.C. § 1415(e)(2). In terms of the education of the handicapped, the regulatory programs established pursuant to the EHA and the Rehabilitation Act are the same. The salient features of EHA are echoed in regulations promulgated by HEW under section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 45 CFR 84.33 et seq. See, e. g., Boxall v. Sequoia, 464 F.Supp. 1104, 1108 (N.D.Cal. 1979); Lora v. Bd. of Education of City of New York, 456 F.Supp. 1211, 1228 (E.D.N. Y.1978), aff’d in part, vacated and remanded in part on other grounds, 2 Cir., 248 F.2d 623 (1980). Thus, the statutes and regulations promulgated thereunder will be treated together for purposes of this opinion. Two significant features of the federal regulatory scheme should be noted. First, there is a clear preference for “mainstreaming,” or educating handicapped children with non-handicapped children , wherever possible. 20 U.S.C. § 1412(5)(B), 45 CFR 121a.550,45 CFR 84.34(a). A school district" } ]

[ { "docid": "22612633", "title": "", "text": "But Monell v. New York City Dept. of Social Services, supra, held that local governments are “persons” within the meaning of the statute, and thus are liable in damages for constitutional violations inflicted by municipal policies. 436 U. S., at 690. Monell did not address the question whether municipalities might enjoy a qualified immunity or good-faith defense against § 1983 actions. 436 U. S., at 695, 701; id., at 713-714 (Powell, J., concurring). After today’s decision, municipalities will have gone in two short years from absolute immunity under § 1983 to strict liability. As a policy matter, I believe that strict municipal liability unreasonably subjects local governments to damages judgments for actions that were reasonable when performed. It converts municipal governance into a hazardous slalom through constitutional obstacles that often are unknown and unknowable. The Court’s decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today’s decision is supported by nothing in the text of § 1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities. A 1 Section 1983 provides a private right of action against “[e]very person” acting under color of state law who imposes or causes to be imposed a deprivation of constitutional rights. Although the statute does not refer to immunities, this Court has held that the law “is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U. S. 409, 418 (1976); see Tenney v. Brandhove, 341 U. S. 367, 376 (1951). This approach reflects several concerns. First, the common-law traditions of immunity for public officials could not have been repealed by the “general language” of § 1983. Tenney v. Brandhove, supra, at 376; see Imbler v. Pachtman, supra, at 421-424; Pierson v. Ray, 386 U. S. 547, 554-555" } ]

[ { "docid": "11773536", "title": "", "text": "an issue it had left open in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court recently held that private defendants faced with section 1983 liability for invoking a state replevin, garnishment or attachment statute may not avail themselves of qualified immunity. Wyatt v. Cole, — U.S. —, —, 112 S.Ct. 1827, 1829, 118 L.Ed.2d 504 (1992). The Court thereby directly overruled contrary decisions in three circuits, including our' own. See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1323-24 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989); see also Buller v. Buechler, 706 F.2d 844, 850-53 (8th Cir.1983); Folsom Inv. Co. v. Moore, 681 F.2d 1032, 1036-38 (5th Cir. Unit A 1982). Although the Court did not explicitly overrule decisions holding that qualified immunity is available to private defendants in other circumstances, the Court’s analysis does not bode well for the continued vitality of these decisions. Instead of restricting its holding to attachment cases, the Court merely left open “the possibility that private defendants faced with [section] 1983 liability under Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that [section] 1983 suits against private, rather than governmental parties could require plaintiffs to carry additional burdens.” Wyatt, — U.S. at —, 112 S.Ct. at 1834. We need not diagnose the current vitality of court of appeals decisions allowing private defendants to assert qualified immunity in non-attachment cases, however, since they would clearly be distinguishable from the present case even in the event they should survive Wyatt intact. Even if Wyatt were to permit us to consider these opinions, we would have to conclude that the numerous cases barring private defendants from relying on qualified immunity in section 1983 actions speak more closely to the present case. A cursory review of the decisions permitting private defendants to claim qualified immunity easily reveals their irrelevance. The Tenth Circuit, in DeVargas v." }, { "docid": "23090026", "title": "", "text": "working for the City, or worked exclusively oh one City project for an entire year. See Tr. of Oral Arg. 34-36. Such questions deprive state actors of the ability to “reasonably anticipate when their conduct may give rise to liability for damages,” Anderson v. Creighton, 483 U. S. 635, 646 (1987) (alteration and internal quotation marks omitted), frustrating the purposes immunity is meant to serve. An uncertain immunity is little better than no immunity at all. r — I 8 — < Our decisions in Wyatt v. Cole, supra, and Richardson v, McKnight, supra, are not to the contrary. In Wyatt, we held that individuals who used a state replevin law to compel the local sheriff to seize disputed property from a former business partner were not entitled to seek qualified immunity. Cf. Lugar, 457 U. S. 922 (holding that an individual who uses a state replevin, garnishment, or attachment statute later declared to be unconstitutional acts under color of state law for purposes of § 1983). We explained that the reasons underlying recognition of qualified immunity did not support its extension to individuals who had no connection to government and pursued purely private ends. Because such individuals “hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good,” we concluded that extending immunity to them would “have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service.” 504 U. S., at 168. Wyatt is plainly not implicated by the circumstances of this case. Unlike the defendants in Wyatt, who were using the mechanisms of government to achieve their own ends, individuals working for the government in pursuit of government objectives are “principally concerned with enhancing the public good.” Ibid. Whether such individuals have assurance that they will be able to seek protection if sued under §1983 directly affects the government’s ability to achieve its objectives through their public service. Put sim ply, Wyatt involved no government agents, no government interests, and no government need for immunity. In Richardson," }, { "docid": "22440066", "title": "", "text": "agree. Compare 504 U. S., at 169-171 (Kennedy, J., concurring) (existence of immunity depends upon “historical origins” and “public policy”), with id., at 175-176 (Rehnquist, C. J., dissenting) (“immunity” recognized where “similarly situated defendant would have enjoyed an immunity at common law” or “when important public policy concerns suggest the need for an immunity”). Fourth, Wyatt did not consider its answer to the question before it as one applicable to all private individuals — irrespective of the nature of their relation to the government, position, or the kind of liability at issue. Rather, Wyatt explicitly limited its holding to what it called a “narrow” question about “private persons . . . who conspire with state officials,” id., at 168, and it answered that question by stating that private defendants “faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute” are not entitled to immunity, id., at 168-169. Wyatt, then, did not answer the legal question before us, whether petitioners — two employees of a private prison management firm — enjoy a qualified immunity from suit under § 1983. It does tell us, however, to look both to history and to the purposes that underlie government employee immunity in order to find the answer. Id., at 164; see also Newport v. Fact Concerts, Inc., 453 U. S. 247, 259 (1981); Owen, supra, at 638; Imbler, supra, at 424. B History does not reveal a “firmly rooted” tradition of immunity applicable to privately employed prison guards. Correctional services in the United States have undergone various transformations. See D. Shiehor, Punishment for Profit 33, 36 (1995) (Shiehor). Governmentsmployed prison guards may have enjoyed a kind of immunity defense arising out of their status as public employees at common law. See Procunier v. Navarette, 434 U. S. 555, 561-562 (1978) (extending qualified immunity to state prison guards). But correctional functions have never been exclusively public. Shiehor 33, 36. Private individuals operated local jails in the 18th century, G. Bowman, S. Hakim, & P. Seidenstat, Privatizing the United States Justice System 271, n. 1 (1992), and private contractors were heavily involved" }, { "docid": "22679658", "title": "", "text": "rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” Id., at 239-240 (footnote omitted). Fairness alone is not, however, a sufficient reason for the immunity defense, and thus does not justify its extension to private parties. Wyatt v. Cole, 504 U. S. 158, 168 (1992). These various protections may not entirely foreclose discovery on the issue of motive, and the Court of Appeals adopted its heightened proof standard in large part to facilitate the resolution of summary judgment motions before any discovery at all. Discovery involving public officials is indeed one of the evils that Harlow aimed to address, but neither that opinion nor subsequent decisions create an immunity from all discovery. Harlow sought to protect officials from the costs of \"broad-reaching” discovery, 457 U. S., at 818, and we have since recognized that limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment based on qualified immunity. Anderson v. Creighton, 483 U. S. 635, 646, n. 6 (1987); see also Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). Though our opinion in Harlow was forthright in revising the immunity defense for policy reasons, see Anderson, 483 U. S., at 645, that decision nonetheless followed recent Court precedent and simply eliminated one aspect of the established doctrine; it did not create a new immunity standard out of whole cloth. Ironically, the heightened standard of proof directly limits the availability of the remedy in cases involving the specific evil at which the Civil Rights Act of 1871 (the predecessor of § 1983) was originally aimed — race discrimination. See Monroe v. Pape, 365 U. S. 167, 174-175 (1961). In his dissent in Harris v. Pate, 440 F. 2d 315 (CA7 1971), Judge Bast-ings wrote in reference to the “ever increasing volume of frivolous civil" }, { "docid": "22440062", "title": "", "text": "the state government, employed the guards. See Tenn. Code Ann. § 41-24-101 et seq, (1990 and Supp. 1996); see generally Cody & Bennett, The Privatization of Correctional Institutions: The Tennessee Experience, 40 Vand. L. Rev. 829 (1987) (outlining State’s history with private correctional services). The court held that, because they worked for a private company rather than the government, the law did not grant the guards immunity from suit. It therefore denied the guards’ motion to dismiss. The guards appealed to the Sixth Circuit. See Mitchell v. Forsyth, 472 U. S. 511, 530 (1985) (permitting interlocutory appeals of qualified immunity determinations); see also Johnson v. Jones, 515 U. S. 304 (1995); Behrens v. Pelletier, 516 U. S. 299 (1996). That court also ruled against them. McKnight v. Rees, 88 F. 3d 417, 425 (CA6 1996). The Court of Appeals conceded that other courts had reached varying conclusions about whether, or the extent to which, private sector defendants are entitled to immunities of the sort the law provides governmental defendants. See, e. g., Eagon v. Elk City, 72 F. 3d 1480, 1489-1490 (CA10 1996); Williams v. O’Leary, 55 F. 3d 320, 323-324 (CA7), cert. denied, 516 U. S. 993 (1995); Frazier v. Bailey, 957 F. 2d 920, 928-929 (CA1 1992). But the court concluded, primarily for reasons of “public policy,” that the privately employed prison guards were not entitled to the immunity provided their governmental counterparts. 88 F. 3d, at 425. We granted certiorari to review this holding. We now affirm. II A We take the Court’s recent case, Wyatt v. Cole, 504 U. S. 158 (1992), as pertinent authority. The Court there considered whether private defendants, charged with § 1983 liabil ity for “invoking state replevin, garnishment, and attachment statutes” later declared unconstitutional were “entitled to qualified immunity from suit.” Id., at 159. It held that they were not. Id., at 169. We find four aspects of Wyatt relevant here. First, as Wyatt noted, § 1983 basically seeks “to deter state áctors from using the badge of their authority to deprive individuals of their federally guaranteed rights” and to provide" }, { "docid": "22141875", "title": "", "text": "cert. denied, 439 U. S. 910 (1978); Conner v. Santa Ana, 897 F. 2d 1487, 1492, n. 9 (CA9), cert. denied, 498 U. S. 816 (1990); Howerton v. Gabica, 708 F. 2d 380, 385, n. 10 (CA9 1983). The Sixth Circuit has rejected qualified immunity for private defendants sued under § 1983 but has established a good faith defense. Duncan v. Peck, 844 F. 2d 1261 (1988). II Title 42 U. S. C. § 1983 provides a cause of action against “[ejvery person who, under color of any statute ... of any State .. . subjects, or causes to be subjected, any citizen . .. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws .. ..” The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Carey v. Piphus, 435 U. S. 247, 254-257 (1978). In Lugar v. Edmondson Oil Co., supra, the Court considered the scope of § 1983 liability in the context of garnishment, prejudgment attachment, and replevin statutes. In that case, the Court held that private parties who attached a debtor’s assets pursuant to a state attachment statute were subject to § 1983 liability if the statute was constitutionally infirm. Noting that our garnishment, prejudgment attachment, and replevin eases established that private use of state laws to secure property could constitute “state action” for purposes of the Fourteenth Amendment, id., at 932-935, the Court held that private defendants invoking a state-created attachment statute act “under color of state law” within the meaning of § 1983 if their actions are “fairly attributable to the State,” id., at 937. This requirement is satisfied, the Court held, if two conditions are met. First, the “deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” Ibid. Second, the private party must have “acted together" }, { "docid": "22440063", "title": "", "text": "City, 72 F. 3d 1480, 1489-1490 (CA10 1996); Williams v. O’Leary, 55 F. 3d 320, 323-324 (CA7), cert. denied, 516 U. S. 993 (1995); Frazier v. Bailey, 957 F. 2d 920, 928-929 (CA1 1992). But the court concluded, primarily for reasons of “public policy,” that the privately employed prison guards were not entitled to the immunity provided their governmental counterparts. 88 F. 3d, at 425. We granted certiorari to review this holding. We now affirm. II A We take the Court’s recent case, Wyatt v. Cole, 504 U. S. 158 (1992), as pertinent authority. The Court there considered whether private defendants, charged with § 1983 liabil ity for “invoking state replevin, garnishment, and attachment statutes” later declared unconstitutional were “entitled to qualified immunity from suit.” Id., at 159. It held that they were not. Id., at 169. We find four aspects of Wyatt relevant here. First, as Wyatt noted, § 1983 basically seeks “to deter state áctors from using the badge of their authority to deprive individuals of their federally guaranteed rights” and to provide related relief. Id., at 161 (emphasis added) (citing Carey v. Piphus, 435 U. S. 247, 254-257 (1978)); see also Owen v. Independence, 445 U. S. 622, 654 (1980). It imposes liability only where a person acts “under color” of a state “statute, ordinance, regulation, custom, or usage.” 42 U. S. C. § 1983. Nonetheless, Wyatt reaffirmed that § 1983 can sometimes impose liability upon a private individual. 504 U. S., at 162; see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 924 (1982). Second, Wyatt reiterated that after Harlow, supra, and this Court’s reformulation of the qualified immunity doctrine, see Anderson v. Creighton, 483 U. S. 635, 645 (1987), a distinction exists between an “immunity from suit” and other kinds of legal defenses. 504 U. S., at 166-167; see also Mitchell, supra, at 526. As the Wyatt concurrence pointed out, a legal defense may well involve “the essence of the wrong,” while an immunity frees one who enjoys it from a lawsuit whether or not he acted wrongly. 504 U. S., at 171—172" }, { "docid": "22141874", "title": "", "text": "1983, were entitled to qualified immunity from suit for conduct arising prior to the statute’s invalidation. Id., at 12-14. The Court of Appeals for the Fifth Circuit affirmed the District Court’s grant of qualified immunity to the private defendants. 928 F. 2d 718 (1991). We granted certiorari, 502 U. S. 807 (1991), to resolve a conflict among the Courts of Appeals over whether private defendants threatened with 42 U. S. C. § 1983 liability are, like certain government officials, entitled to qualified immunity from suit. Like the Fifth Circuit, the Eighth and Eleventh Circuits have determined that private defendants are entitled to qualified immunity. See Buller v. Buechler, 706 F. 2d 844, 850-852 (CA8 1983); Jones v. Preuit & Mauldin, 851 F. 2d 1321, 1323-1325 (CA11 1988) (en banc), vacated on other grounds, 489 U. S. 1002 (1989). The First and Ninth Circuits, however, have held that in certain circumstances, private parties acting under color of state law are not entitled to such an immunity. See Downs v. Sawtelle, 574 F. 2d 1, 15-16 (CA1), cert. denied, 439 U. S. 910 (1978); Conner v. Santa Ana, 897 F. 2d 1487, 1492, n. 9 (CA9), cert. denied, 498 U. S. 816 (1990); Howerton v. Gabica, 708 F. 2d 380, 385, n. 10 (CA9 1983). The Sixth Circuit has rejected qualified immunity for private defendants sued under § 1983 but has established a good faith defense. Duncan v. Peck, 844 F. 2d 1261 (1988). II Title 42 U. S. C. § 1983 provides a cause of action against “[ejvery person who, under color of any statute ... of any State .. . subjects, or causes to be subjected, any citizen . .. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws .. ..” The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Carey v. Piphus, 435 U. S. 247, 254-257 (1978). In Lugar v. Edmondson Oil Co., supra, the Court" }, { "docid": "22440065", "title": "", "text": "(Kennedy, J., concurring). Third, Wyatt specified the legal source of § 1983 immunities. It pointed out that although § 1983 “ ‘creates a species of tort liability that on its face admits of no immunities,’ ” id., at 163 (quoting Imbler v. Pachtman, 424 U. S. 409, 417 (1976)), this Court has nonetheless accorded immunity where a “ ‘tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.” ’ ” 504 U. S., at 164 (quoting Owen v. Independence, supra, at 637). The Wyatt majority, in deciding whether or not the private defendants enjoyed immunity, looked both to history and to “the special policy concerns involved in suing government officials.” 504 U. S., at 167; see also Mitchell, supra, at 526; Harlow, supra, at 807; Imbler v. Pachtman, supra, at 424. And in this respect — the relevant sources of the law — both the Wyatt concurrence, and the dissent seemed to agree. Compare 504 U. S., at 169-171 (Kennedy, J., concurring) (existence of immunity depends upon “historical origins” and “public policy”), with id., at 175-176 (Rehnquist, C. J., dissenting) (“immunity” recognized where “similarly situated defendant would have enjoyed an immunity at common law” or “when important public policy concerns suggest the need for an immunity”). Fourth, Wyatt did not consider its answer to the question before it as one applicable to all private individuals — irrespective of the nature of their relation to the government, position, or the kind of liability at issue. Rather, Wyatt explicitly limited its holding to what it called a “narrow” question about “private persons . . . who conspire with state officials,” id., at 168, and it answered that question by stating that private defendants “faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute” are not entitled to immunity, id., at 168-169. Wyatt, then, did not answer the legal question before us, whether petitioners — two employees of a private prison management firm — enjoy a" }, { "docid": "14630156", "title": "", "text": "plaintiffs assert that Black & Veatch acted under color of state law to deprive plaintiffs of their rights “under the Constitution and laws of. the United States.” In support of their claim, plaintiffs maintain that Black & Veatch agreed with MODOT officials to shift work from EAI to non-minority entities and solicited and received the district engineer’s waiver of the DBE participation goal based on Black & Veatch’s allegedly fraudulent representation that it had been unsuccessful in identifying a qualified DBE to perform meaningful work on the project. Black & Veatch contends that summary judgment on this claim is appropriate because plaintiffs have not set forth sufficient facts demonstrating that Black & Veatch either acted “under color of state law” or deprived plaintiffs of a federally protected right. As set forth below, the court agrees with Black & Veatch that plaintiffs have not come forward with sufficient facts from which a reasonable jury could conclude that Black & Veatch acted under color of state law. Thus, the court grants defendant’s motion for summary judgment on plaintiffs’ section 1983 claim. As the Supreme Court recently reiterated, section 1983 “basically seeks ‘to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights’ and to provide related relief.” See Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (quoting Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978))). It imposes liability only where a person acts “under color” of a state “statute, ordinance, regulation, custom, or usage.” Id. (quoting 42 U.S.C. § 1983). Nonetheless, section 1983 can sometimes impose liability upon a private individual or entity under certain narrowly prescribed circumstances. Id. (citing Wyatt, 504 U.S. at 162, 112 S.Ct. 1827; Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). It is uncontroverted that Black & Veatch is a private actor for purposes of analyzing plaintiffs’ section 1983 claim. In order to hold" }, { "docid": "22440081", "title": "", "text": "provide — pressures not necessarily present in government departments. Since there are no special reasons significantly favoring an extension of governmental immunity, and since Wyatt makes clear that private actors are not automatically immune (i. e., § 1983 immunity does not automatically follow § 1983 liability), we must conclude that private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a § 1983 case. Cf. Forrester v. White, 484 U. S., at 224 (Officers “who seek exemption from personal liability have the burden of showing that such an exemption is justified”); see also Butz, 438 U. S., at 506. ) — I H-4 H-< We close with three caveats. First, we have focused only on questions of §1983 immunity and have not addressed whether the defendants are liable under § 1983 even though they are employed by a private firm. Because the Court of Appeals assumed, but did not decide, § 1983 liability, it is for the District Court to determine whether, under this Court’s decision in Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), defendants actually acted “under color of state law.” Second, we have answered the immunity question narrowly, in the context in which it arose. That context is one in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms. The case does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Third, Wyatt explicitly stated that it did not decide whether or not the private defendants before it might assert, not immunity, but a special “good-faith” defense. The Court said that it “d[id] not foreclose the possibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that" }, { "docid": "14630157", "title": "", "text": "plaintiffs’ section 1983 claim. As the Supreme Court recently reiterated, section 1983 “basically seeks ‘to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights’ and to provide related relief.” See Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (quoting Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978))). It imposes liability only where a person acts “under color” of a state “statute, ordinance, regulation, custom, or usage.” Id. (quoting 42 U.S.C. § 1983). Nonetheless, section 1983 can sometimes impose liability upon a private individual or entity under certain narrowly prescribed circumstances. Id. (citing Wyatt, 504 U.S. at 162, 112 S.Ct. 1827; Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). It is uncontroverted that Black & Veatch is a private actor for purposes of analyzing plaintiffs’ section 1983 claim. In order to hold a private actor liable under section 1983, “it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual’s conduct is in some other way chargeable to the State.” Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir.1996) (quoting Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.1987)); see also Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995) (identifying four tests for determining whether particular conduct constitutes state action). In their response to defendant’s motion for summary judgment, plaintiffs submit that they are relying on the “joint action” test to establish defendant’s liability under section 1983. See Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under the “joint action” test, a section 1983 claim may arise when a private party acts “in concert” with (i.e., conspires with) state" }, { "docid": "22440082", "title": "", "text": "Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), defendants actually acted “under color of state law.” Second, we have answered the immunity question narrowly, in the context in which it arose. That context is one in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms. The case does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Third, Wyatt explicitly stated that it did not decide whether or not the private defendants before it might assert, not immunity, but a special “good-faith” defense. The Court said that it “d[id] not foreclose the possibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens.” Wyatt, 504 U. S., at 169. But because those issues were not fairly before the Court, it left “them for another day.” Ibid. Similarly, the Court of Appeals in this case limited its holding to the question of immunity. It said specifically that it “may be that the appropriate balance to be struck here is to permit the correctional officers to assert a good faith defense, rather than qualified immunity. . . . However, that issue is not before this Court in this interlocutory appeal.” 88 F. 3d, at 425. Like the Court in Wyatt, and the Court of Appeals in this case, we do not express a view on this last-mentioned question. For these reasons the judgment of the Court of Appeals is Affirmed. Justice Scalia, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting. In Procunier v. Navarette, 434 U. S. 555 (1978), we held that state prison officials, including both supervisory and subordinate" }, { "docid": "11147641", "title": "", "text": "qualified immunity was unavailable to private defendants faced with Section 1983 liability for invoking a state replevin, garnishment or attachment statute. — U.S. -, -, 112 S.Ct. 1827, 1832, 118 L.Ed.2d 504 (1992). The Wyatt Court reasoned as follows: First, the Supreme Court explained that qualified immunity defense finds its support in common law traditions and other “strong policy reasons.” Id. at - - -, 112 S.Ct. at 1830-31. However, the Court opined that “irrespective of the common law support, we will not recognize an immunity available at common law if § 1983’s history or purpose counsel against applying it in § 1983 actions.” Id. Next, the Supreme Court found that common law did not protect private persons who instituted attachment actions from malicious prosecution or abuse of process actions. The Supreme Court further explained that the policy reasons announced in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) for keeping insubstantial claims against public officials from going to trial did not apply in the attachment context. Id. at -, 112 S.Ct. at 1833. Qualified immunity protected government officials only “where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damage suits from entering public service.” Id. The Supreme Court refused to extend qualified immunity to private parties in the case before it for two main reasons. First, private parties do not hold an office requiring them to exercise discretion in which they principally strive to enhance the public good. Second, the public interest is not “unduly impaired” if private parties go to trial because private parties are not government officials performing discretionary functions. The Supreme Court summarized its thinking by stating that “[i]n short, the nexus between private parties and the historic purpose of qualified immunity is simply too attenuated to justify such an extension of our doctrine of qualified immunity.” Id. at - - -, 112 S.Ct. at 1833-34. Wyatt left open the issue of whether “private defendants faced with § 1983 liability under Lugar v. Edmondson" }, { "docid": "11524364", "title": "", "text": "that these officers violated his constitutional rights under the Eighth Amendment by subjecting him to tight restraints during his transport to another prison. He claims that the restraints caused him serious medical injury which actually required hospitalization. Finally, the complaint states that McKnight’s protestations were ignored, and that Richardson and Walker taunted him after he complained about the restraints. Richardson and Walker moved to dismiss the complaint, asserting that they were entitled to qualified immunity pursuant to then-job function as correctional officers. The district court denied the motion to dismiss, holding that Richardson and Walker, as employees of a private, for-profit corporation, were not entitled to the defense of qualified immunity. This timely interlocutory appeal followed. Section 1983 provides a cause of action against any person who, under color of state law, deprives an individual of any right, privilege, or immunity secured by the Constitution and federal law. 42 U.S.C. § 1983. “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (1992) (citation omitted). The Supreme Court has repeatedly recognized that “[w]hen government officials abuse their offices, ‘action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.’ ” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982)). Balanced against this concern is the equally important need to ensure that the threat of personal liability does not inhibit public officials from vigorously performing their duties as representatives of the public interest. Id. We are asked here whether accommodation of these competing interests warrants the extension of qualified immunity to corrections officers employed by a private corporation under contract with the State of Tennessee. We begin by noting that state employed correctional officers do enjoy the protections of qualified immunity in carrying out their duties. Procunier" }, { "docid": "22141872", "title": "", "text": "Justice O’Connor delivered the opinion of the Court. In Lugar v. Edmondson Oil Co., 467 U. S. 922 (1982), we left open the question whether private defendants charged with 42 U. S. C. § 1988 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional are entitled to qualified immunity from suit. 457 U. S., at 942, n. 23. We now hold that they are not. I This dispute arises out of a soured cattle partnership. In July 1986, respondent Bill Cole sought to dissolve his partnership with petitioner Howard Wyatt. When no agreement could be reached, Cole, with the assistance of an attorney, respondent John Robbins II, filed a state court complaint in replevin against Wyatt, accompanied by a re-plevin bond of $18,000. At that time, Mississippi law provided that an individual could obtain a court order for seizure of property possessed by another by posting a bond and swearing to a state court that the applicant was entitled to that property and that the adversary “wrongfully took and detained] or wrongfully detain[ed]” the property. 1975 Miss. Gen. Laws, ch. 508, § 1. The statute gave the judge no discretion to deny a writ of replevin. After Cole presented a complaint and bond, the court ordered the county sheriff to seize 24 head of cattle, a tractor, and certain other personal property from Wyatt. Several months later, after a postseizure hearing, the court dismissed Cole’s complaint in replevin and ordered the property returned to Wyatt. When Cole refused to comply, Wyatt brought suit in Federal District Court, challenging the constitutionality of the statute and seeking injunctive relief and damages from respondents, the county sheriff, and the deputies involved in the seizure. The District Court held that the statute’s failure to afford judges discretion to deny writs of replevin violated due process. 710 F. Supp. 180, 183 (SD Miss. 1989). It dismissed the suit against the government officials involved in the seizure on the ground that they were entitled to qualified immunity. App. 17-18. The court also held that Cole and Robbins, even if otherwise liable under §" }, { "docid": "1377911", "title": "", "text": "public functions, or who jointly participate with a state to engage in concerted activity, are regarded as acting “under the color of state law” for the purposes of § 1983. See Wyatt v. Cole, 504 U.S. 158, 162, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992); Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 938-39, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). In assessing whether the qualified immunity afforded state officials extends to private actors who are considered state actors under § 1983, we must consider both the purposes of qualified immunity protection and the nature of the relationship between the state and the putative private party. See Richardson, 521 U.S. at 404, 117 S.Ct. 2100. Qualified immunity protects government officials performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Within the context of allowing private parties to vindicate then-right to be free from § 1983 infractions, the animating purpose of the Supreme Court’s articulation of qualified immunity standards in Harlow is to allow public officials to perform important government functions free from the debilitating effects of excessive litigation. See id.; Wyatt, 504 U.S. at 166, 112 S.Ct. 1827. In limiting a public official’s personal liability to objectively unreasonable violations of clearly established law, the Harlow Court was expressly concerned that numerous lawsuits would distract government officials from performing their functions, would inhibit discretionary action, and would deter desirable candidates from performing public service. See Harlow, 457 U.S. at 816, 102 S.Ct. 2727. In Wyatt and Richardson, the Supreme Court refined Harlow, holding that a private party may not assert qualified immunity when the incentives for a particular government function are fundamentally inconsistent with the foregoing purposes of qualified immunity protection. See Wyatt, 504 U.S. at 167, 112 S.Ct. 1827 (providing that “the special policy concerns” that underlie qualified immunity" }, { "docid": "22440064", "title": "", "text": "related relief. Id., at 161 (emphasis added) (citing Carey v. Piphus, 435 U. S. 247, 254-257 (1978)); see also Owen v. Independence, 445 U. S. 622, 654 (1980). It imposes liability only where a person acts “under color” of a state “statute, ordinance, regulation, custom, or usage.” 42 U. S. C. § 1983. Nonetheless, Wyatt reaffirmed that § 1983 can sometimes impose liability upon a private individual. 504 U. S., at 162; see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 924 (1982). Second, Wyatt reiterated that after Harlow, supra, and this Court’s reformulation of the qualified immunity doctrine, see Anderson v. Creighton, 483 U. S. 635, 645 (1987), a distinction exists between an “immunity from suit” and other kinds of legal defenses. 504 U. S., at 166-167; see also Mitchell, supra, at 526. As the Wyatt concurrence pointed out, a legal defense may well involve “the essence of the wrong,” while an immunity frees one who enjoys it from a lawsuit whether or not he acted wrongly. 504 U. S., at 171—172 (Kennedy, J., concurring). Third, Wyatt specified the legal source of § 1983 immunities. It pointed out that although § 1983 “ ‘creates a species of tort liability that on its face admits of no immunities,’ ” id., at 163 (quoting Imbler v. Pachtman, 424 U. S. 409, 417 (1976)), this Court has nonetheless accorded immunity where a “ ‘tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.” ’ ” 504 U. S., at 164 (quoting Owen v. Independence, supra, at 637). The Wyatt majority, in deciding whether or not the private defendants enjoyed immunity, looked both to history and to “the special policy concerns involved in suing government officials.” 504 U. S., at 167; see also Mitchell, supra, at 526; Harlow, supra, at 807; Imbler v. Pachtman, supra, at 424. And in this respect — the relevant sources of the law — both the Wyatt concurrence, and the dissent seemed to" }, { "docid": "22141873", "title": "", "text": "detain[ed]” the property. 1975 Miss. Gen. Laws, ch. 508, § 1. The statute gave the judge no discretion to deny a writ of replevin. After Cole presented a complaint and bond, the court ordered the county sheriff to seize 24 head of cattle, a tractor, and certain other personal property from Wyatt. Several months later, after a postseizure hearing, the court dismissed Cole’s complaint in replevin and ordered the property returned to Wyatt. When Cole refused to comply, Wyatt brought suit in Federal District Court, challenging the constitutionality of the statute and seeking injunctive relief and damages from respondents, the county sheriff, and the deputies involved in the seizure. The District Court held that the statute’s failure to afford judges discretion to deny writs of replevin violated due process. 710 F. Supp. 180, 183 (SD Miss. 1989). It dismissed the suit against the government officials involved in the seizure on the ground that they were entitled to qualified immunity. App. 17-18. The court also held that Cole and Robbins, even if otherwise liable under § 1983, were entitled to qualified immunity from suit for conduct arising prior to the statute’s invalidation. Id., at 12-14. The Court of Appeals for the Fifth Circuit affirmed the District Court’s grant of qualified immunity to the private defendants. 928 F. 2d 718 (1991). We granted certiorari, 502 U. S. 807 (1991), to resolve a conflict among the Courts of Appeals over whether private defendants threatened with 42 U. S. C. § 1983 liability are, like certain government officials, entitled to qualified immunity from suit. Like the Fifth Circuit, the Eighth and Eleventh Circuits have determined that private defendants are entitled to qualified immunity. See Buller v. Buechler, 706 F. 2d 844, 850-852 (CA8 1983); Jones v. Preuit & Mauldin, 851 F. 2d 1321, 1323-1325 (CA11 1988) (en banc), vacated on other grounds, 489 U. S. 1002 (1989). The First and Ninth Circuits, however, have held that in certain circumstances, private parties acting under color of state law are not entitled to such an immunity. See Downs v. Sawtelle, 574 F. 2d 1, 15-16 (CA1)," }, { "docid": "23090025", "title": "", "text": "in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits is also implicated when individuals other than permanent government employees discharge these duties. See Richardson, supra, at 411. Not only will such individuals’ performance of any ongoing government responsibilities suffer from the distraction of lawsuits, but such distractions will also often affect any public employees with whom they work by embroiling those employees in litigation. This case is again a good example: If the suit against Filar-sky moves forward, it is highly likely that Chief Wells, Bek-ker, and Peel will all be required to testify, given their roles in the dispute. Allowing suit under § 1983 against private individuals assisting the government will substantially undermine an important reason immunity is accorded public employees in the first place. Distinguishing among those who carry out the public’s business based on the nature of their particular relationship with the government also creates significant line-drawing problems. It is unclear, for example, how Filarsky would be categorized if he regularly spent half his time working for the City, or worked exclusively oh one City project for an entire year. See Tr. of Oral Arg. 34-36. Such questions deprive state actors of the ability to “reasonably anticipate when their conduct may give rise to liability for damages,” Anderson v. Creighton, 483 U. S. 635, 646 (1987) (alteration and internal quotation marks omitted), frustrating the purposes immunity is meant to serve. An uncertain immunity is little better than no immunity at all. r — I 8 — < Our decisions in Wyatt v. Cole, supra, and Richardson v, McKnight, supra, are not to the contrary. In Wyatt, we held that individuals who used a state replevin law to compel the local sheriff to seize disputed property from a former business partner were not entitled to seek qualified immunity. Cf. Lugar, 457 U. S. 922 (holding that an individual who uses a state replevin, garnishment, or attachment statute later declared to be unconstitutional acts under color of state law for purposes of § 1983). We explained that the reasons underlying recognition of" } ]

[ { "docid": "9328390", "title": "", "text": "under Title VII. IV. Claims Against Anheuser-Busch A. Title VII Title VII proscribes certain actions of “employers,” “employment agencies,” and “labor organizations.” 42 U.S.C. § 2000e-2. In considering whether a corporation related to an employer may be liable under Title VII as a joint employer, the Fifth Circuit follows the four-factor test adopted by the United States Supreme Court in the context of a labor dispute in Radio Union v. Broadcast Service, 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). See Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983) (applying the Radio Union test in a civil-rights context); see also Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir.1994) (applying Trevino to a Title VII action). [T]he rule has emerged that superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Trevino, 701 F.2d at 404. Traditionally, the second of these four factors has been considered the most important, such that courts have focused almost exclusively on one question: which entity made the final decisions regarding employment matters relating to the person claiming discrimination? See Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997) (citing Trevino, 701 F.2d at 404). Contending that Anheuser-Busch was her and Mitchell’s employer for Title VII purposes, Skidmore points to evidence of five points: (1) Anheuser-Busch approved Precision’s awards for accident-free work records; (2) Skidmore received á corporate letter of commendation that referred to her as an Anheuser-Busch employee; (3) Anheuser-Busch gave production directives to Precision; (4) an Anheuser-Busch vice-president held meetings with Precision’s employee safety team and presided over presentations on expansion and purchase of new presses; and (5) legal counsel at Anheuser-Busch handled Skid-more’s EEOC charge and harassment suit. The evidence to which Skid-more points does not support a finding that Anheuser-Busch was her employer for Title VII purposes. The" } ]

[ { "docid": "7304108", "title": "", "text": "two entities’ activities, operations, ownership, or management are sufficiently interrelated. Trevino, 701 F.2d at 403. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Trevino, 701 F.2d at 404. Courts applying this four-part standard have usually focused on the second factor; centralized control of labor relations. Id. This criterion has been boiled down to an inquiry of “what entity made the final decisions regarding employment matters related to the person claiming discrimination.” Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986). EPNG concedes that it is “a beneficial minority owner of Mojave [with] ... the beneficial right to select a minority of members of Mojave’s Board....” Agreed Pre-Trial Order, at 7. Consequently, EPNG, and not Mojave, made the final decision regarding selection of Holland to the Mojave board of directors. Guzman’s failure-to-promote claim thus survives EPNG’s motion for summary judgment in so far as it alleges a failure of EPNG to promote Guzman to the Mojave board of directors. However, this failure to promote Guzman to the Mojave board of directors must be distinguished from EPNG’s alleged failure to promote Guzman to an Executive Vice President position with Mojave. The uncontradicted summary-judgment evidence in this case establishes that the by-laws of Mojave provide that its board of directors shall have the authority to elect its officers. The Mojave board of directors is made up of equal numbers of representatives from two distinct corporate entities, Enron Corp. and EPNG. It is clear that Holland’s appointment to Executive Vice President of Mojave on October 1, 1986 was a decision of the board of directors of Mojave. Because Mojave’s bylaws require the equal representation of Enron and EPNG on its board of directors, an employment decision by the Mojave board of directors cannot be charged to EPNG. In this case, Guzman simply cannot establish, under either Chaiffetz or Trevino, that it was EPNG’s decision to promote Holland rather than himself to an Executive Vice President position with" }, { "docid": "22389343", "title": "", "text": "(5th Cir.1994). Summary judgment is appropriate if a reasonable jury could not return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Turner first argues that the district court erred in dismissing her claims against the Foundation as a matter of law. As Title VII prohibits discrimination in the employment context, see 42 U.S.C. § 2000e-2(a), 2000e-5, generally only employers may be liable under Title VII. See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 462 (5th Cir.2001). In an attempt to bring her Title VII claims against both the Foundation and RHA, Turner argued in her Response to Appellees’ Motion for Summary Judgment that the Foundation and RHA could be considered a single entity under an “integrated-enterprise” theory of enterprise liability. The district court held that the Foundation and RHA were not a single integrated enterprise and dismissed Turner’s claims against the Foundation as a matter of law. In her Motion for New Trial, Turner argued for the first time that the Foundation and RHA could be considered a single entity under a “joint-employer” theory of liability. The district court held that this argument was waived due to Turner’s failure to raise it prior to the entry of judgment. On appeal, Turner argues that the district court erred in finding that Turner was not an employee of the Foundation under either an integrated-enterprise or joint-employer theory of enterprise liability. Appellees maintain that Turner waived the joint-employer argument, and, regardless, that Turner was not an employee of the Foundation under either theory of liability. We generally evaluate Title VII employer status under the four-part Trevino test, which involves consideration of (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See Vance v. Union Planters Corp., 279 F.3d 295, 297 (5th Cir.2002) (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). We place “highest importance on the second factor, rephrasing and specifying it so as to boil down to an inquiry of ‘what entity made" }, { "docid": "3847418", "title": "", "text": "whether two entities served as a single employer for Title VII purposes in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four relevant factors are “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Trevino, 701 F.2d at 404. The second factor has been refined into an inquiry about “[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” Id. (quoting Odriozola v. Superior Cosmetic Distribs., Inc., 531 F.Supp. 1070, 1076 (D.P.R.1982)). This factor, furthermore, has been . called the most important one. Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997). But see Carpenters Local Union No. 1846 of United Brotherhood of Carpenters v. Pratt-Farnsworth, Inc., 690 F.2d 489, 505 (5th Cir.1982) (“[N]o one of the factors is controlling ... nor need all criteria be present.”) (citation omitted). Assuming that the Trevino test applies, Johnson seems to have presented evidence of the interrelation of operations and, to a lesser extent, ■ common management. Crown and Dixie operate from the same building, and Dixie uses Crown for secretarial support and supplies, such as copiers and paper. Crown does not appear to separately account for the time its employees spend doing administrative wbrk for Dixie. Further, Crown’s personnel director, Louis Jordan, responded to Johnson’s EEOC charge. Jordan also testified that any Dixie contractor could have gone to him with any complaints about the nonrenewal of a contract with Dixie. As for common ownership ■ or financial control, both corporations were formed and originally owned by one person, Ross Campesi, Sr. Campesi transferred ownership of Crown to' one son, Ross Campesi, Jr., and transferred Dixie to another son, Michael Campesi. There is, therefore, a history of common ownership and current family ownership. Yet Johnson fails to present any evidence that Crown actually made any of Dixie’s labor decisions, including decisions regarding the renewal of the driver contracts. The district court concluded that, because this factor was the most important, Crown was entitled to summary judgment despite the existence of some other evidence" }, { "docid": "14002334", "title": "", "text": "should in fact be treated as a single entity. In Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), the Supreme Court recognized the validity of the National Labor Relations Board's approach in a labor dispute to determining whether various business entities constitute a \"single employer” by considering whether they \"comprise a single enterprise.” Id. The Supreme Court set out the standard for the “single employer” inquiry as follows: \"[I]n determining the relevant employer, the [National Labor Relations] Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise.... The controlling criteria ... are interrelation of operations, common management, centralized control of labor relations and common ownership.” Radio & Television Broadcast Technicians, 380 U.S. at 256, 85 S.Ct. at 877 (citations omitted). See abo McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); EEOC v. Wooster Brush Company Employees Relief Ass’n, 727 F.2d 566, 571-73 (6th Cir.1984); Trevino v. Celanese Corp., 701 F.2d 397, 403, rehearing denied, 707 F.2d 515 (5th Cir.1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). The Radio & Televbion factors that have consistently been applied to the \"single employer” inquiry are not relevant to our \"joint employer” inquiry in this case. .The Browning-Ferris court described the “joint employer” concept more fully as follows: The basis of the finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer. Thus, the “joint employer” concept recognizes that the business entities involved are in fact separate but that they share or co-determine those conditions of employment. C.R. Adams Trucking, Inc., 262 NLRB No. 67, June 30, 1982, slip op. at 5; Ref-Chem Co. v. NLRB, 418 F.2d 127, 129 (5th Cir.1969); NLRB v. Greyhound Corp., 368 F.2d 778, 780 (5th Cir.1966). Browning-Ferris, 691 F.2d at 1123. . Roberto Fyffe testified at his deposition" }, { "docid": "22389344", "title": "", "text": "the Foundation and RHA could be considered a single entity under a “joint-employer” theory of liability. The district court held that this argument was waived due to Turner’s failure to raise it prior to the entry of judgment. On appeal, Turner argues that the district court erred in finding that Turner was not an employee of the Foundation under either an integrated-enterprise or joint-employer theory of enterprise liability. Appellees maintain that Turner waived the joint-employer argument, and, regardless, that Turner was not an employee of the Foundation under either theory of liability. We generally evaluate Title VII employer status under the four-part Trevino test, which involves consideration of (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See Vance v. Union Planters Corp., 279 F.3d 295, 297 (5th Cir.2002) (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). We place “highest importance on the second factor, rephrasing and specifying it so as to boil down to an inquiry of ‘what entity made the final decisions regarding employment matters related to the person claiming discrimination.’ ” Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986) (quoting Odriozola v. Superior Cosmetic Distributors, Inc., 531 F.Supp. 1070, 1076 (D.P.R.1982)). In making her integrated-enterprise argument, Turner implies that RHA and the Foundation shared common control over her employment. However, the record clearly belies this suggestion. Turner was both hired and fired by RHA. Turner was never paid, supervised, or disciplined by the Foundation. Turner’s supervisor, Colston, was an RHA employee who reported to Boring, RHA’s CEO. RHA, then, clearly “made the final decisions regarding employment matters related” to Turner. See Chaiffetz, 798 F.2d at 735. Further, Turner has presented no evidence of centralized control of labor relations. The only evidence of common ownership or management between the Foundation and RHA is Boring’s ex-officio seat on the Foundation’s Board. Although Turner’s job activities may have benefitted the Foundation, this fact does not overcome her inability to meet the Trevino criteria. Further, our prior case law suggests that a government" }, { "docid": "7304107", "title": "", "text": "Holland as Executive Vice President of Mojave Pipeline Operating Company (“Mojave”), was the decision of Mojave, a separate and distinct corporation, and not EPNG. Arguing that “Mojave and El Paso are separate corporate entities and ... should be treated as such,” id. at 5, Defendant concludes that “El Paso is not responsible for the Holland appointment awarded him by Mojave — a separate corporate entity only partly owned by El Paso.” Id. at 7. General Partnership; An employer may be responsible for the actions of a superficially distinct entity if the evidence shows that the two companies represent a single integrated enterprise, i.e., if they are in fact a “single employer.” Radio Broadcast Technician Local 1264 v. Broadcast Services, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965); Trevino v. Celanese Corp., 701 F.2d 397, 403-404 (5th Cir.1983). Ordinarily, promotion is perceived as occurring within a single company or organization. It is clear, however, that an employee may also be promoted or denied promotion, from one to another nominally independent entity, provided these two entities’ activities, operations, ownership, or management are sufficiently interrelated. Trevino, 701 F.2d at 403. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Trevino, 701 F.2d at 404. Courts applying this four-part standard have usually focused on the second factor; centralized control of labor relations. Id. This criterion has been boiled down to an inquiry of “what entity made the final decisions regarding employment matters related to the person claiming discrimination.” Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986). EPNG concedes that it is “a beneficial minority owner of Mojave [with] ... the beneficial right to select a minority of members of Mojave’s Board....” Agreed Pre-Trial Order, at 7. Consequently, EPNG, and not Mojave, made the final decision regarding selection of Holland to the Mojave board of directors. Guzman’s failure-to-promote claim thus survives EPNG’s motion for summary judgment in so far as it alleges a failure of" }, { "docid": "22920082", "title": "", "text": "America, 28 F.3d 446, 450 (5th Cir.1994) (internal quotation marks omitted); see also Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977) (applying the four-part test to consolidate two separate corporations as the plaintiffs employer under Title VII). The National Labor Relations Board originally developed this test as a means for ascertaining whether two entities constituted a single employer in the context of labor disputes, and that test was subsequently approved by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). However, “[cjourts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations.” Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). The Fifth Circuit has held that “this criterion has been further refined to the point that the critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming discrimination?” Id. (citations and internal quotations omitted); see also Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993) (whether parent controls labor relations is an important factor in the four-part integrated test); Frishberg v. Esprit de Corps, 778 F.Supp. 793, 800 (S.D.N.Y.1991) (single employer doctrine “focuses on the degree of control by the parent or related company over the direct employing company”), aff'd without opinion, 969 F.2d 1042 (2d Cir.1992). Therefore, as the Sixth Circuit has held, the four-factor test may be satisfied “by a showing that there is an amount of participation [that] is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions.” Armbmster, 711 F.2d at 1338 (citation and internal quotations omitted). We believe that the appropriate test under Title VII for determining when parent companies may be considered employers of a subsidiary’s employees is the four-part test adopted by the Fifth, Sixth, and Eighth circuits. We focus our inquiry, as those circuits do, on the second factor, centralized control of labor" }, { "docid": "22237710", "title": "", "text": "mean that there would always be a material factual dispute as to this prong because the top officer of a subsidiary is, at some point, always held accountable to an officer of the parent corporation. Furthermore, merely because a parent corporation eventually benefits from the work of its subsidiaries is not evidence of interrelated operations nor is the fact that one of parent’s employees is an occasional consultant on the project. Thus, Plaintiffs have failed to produce the type of evidence routinely used to show interrelated operations. See McKenzie, 834 F.2d at 933-34 (parent’s operations were interrelated with those of subsidiary when parent kept subsidiary’s books, issued its paychecks, and paid its bills); Perry, 675 F.Supp. at 1426 (operations interrelated when parent and subsidiary had common employees, the same headquarters, common advertising, and the parent rented its properties to the subsidiary); Financial Assurance, 624 F.Supp. at 689-90 (operations interrelated when parent and subsidiary shared services, equipment, employees and office space, and parent controlled subsidiary’s payroll and benefit programs). 2. Centralized Control of Labor Relations Whether the parent controls labor relations is “an important factor” in the four-part integrated enterprise test. Evans, 936 F.2d at 1090. Cf. Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983) (control of labor relations is most important factor). The critical question is, “[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” Trevino, 701 F.2d at 404. A parent’s broad general policy statements regarding employment matters are not enough to satisfy this prong. See Wood v. Southern Bell Tel. & Tel. Co., 725 F.Supp. 1244, 1249 (N.D.Ga.1989). To satisfy the control prong, a parent must control the day-to-day employment decisions of the subsidiary. See Armbruster, 711 F.2d at 1338-39 (common officer in parent and subsidiary approved all of subsidiary’s hiring decisions); Baker, 560 F.2d at 392 (parent issued regimented rules regarding employment practices which subsidiaries were required to follow); Smith, 590 F.Supp. at 1208 (parent issued personnel policies, paid subsidiary’s non-union employees, was listed as employer on the W-2 forms of subsidiary’s non-union employees, and terminated a subsidiary employee" }, { "docid": "8023304", "title": "", "text": "Inc., 7 F.3d 577, 582 (7th Cir.1993); Johnson v. Flowers Indus., Inc., 814 F.2d 978, 981 (4th Cir.1987); York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982). To determine whether a parent corporation and its subsidiary may be regarded as a “single employer” under the ADEA, we apply the four-part analysis originally adopted by the Supreme Court in the context of labor disputes, see Radio Union v. Broadcast Serv., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), and extended to civil rights actions by this court in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four factors to consider include: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control. 701 F.2d at 404. This analysis ultimately focuses on the question whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation, id.; Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986), and all four factors are examined only as they bear on this precise issue, see Schweitzer, 104 F.3d at 765. Although the appellants produced evidence establishing common management and ownership between Nil and its FoxMeyer subsidiaries, these factors alone are insufficient to establish single employer status. The doctrine of limited liability. creates a strong presumption that a parent corporation is not the employer of its subsidiary’s employees. Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993) (citing Johnson, 814 F.2d at 980); see also Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483 F.2d 1098, 1102 (5th Cir.1973) (corporate form is not disregarded lightly since the law created corporations primarily to allow limited liability). Only evidence of control suggesting a significant departure from the ordinary relationship between a parent and its subsidiary' — domination similar to that which justifies piercing the corporate veil — is sufficient to rebut this presumption, see Johnson, 814 F.2d at 981, and to permit an inference that the parent corporation was a final decision-maker in its subsidiary’s employment decisions." }, { "docid": "23308175", "title": "", "text": "is appropriate to aggregate multiple entities for the purposes of counting employees. First, where two ostensibly separate entities are “ ‘highly integrated with respect to ownership and operations,’ ” we may count them together under Title VII. McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)). This is the “single employer” or “integrated enterprise” test. Second, where two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company’s employees, we may treat the entities as “joint employers” and aggregate them. See Virgo, 30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer delegates sufficient control of some traditional rights over employees to a third party, we may treat the third party as an agent of the employer and aggregate the two when counting employees. See Williams, 742 F.2d at 589. This is the “agency” test. See generally 2 Barbara Lin-demann & Paul Grossman, Employment Discrimination Law 1309-17 (3rd ed.1996). The issue before us involves the “single employer” test. In determining whether two non-governmental entities should be consolidated and counted as a single employer, we have applied the standard promulgated in NLRA cases by the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This standard sets out four criteria for determining whether nominally separate entities should be treated as an integrated enterprise. Under the so-called “NLRB test,” we look for “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id.See also Radio and Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). The four-factor NLRB “single employer” test was first applied in the Title VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir.1977). Since that time, most of the circuits considering whether to integrate multiple entities under Title VII have seized upon that" }, { "docid": "3922325", "title": "", "text": "the agreement of the parties. Defendant must rely on its alternative argument that IDC and defendant were integrated so as to be a single employer under the ADEA. In the context of the National Labor Relations Act, an integrated employer exists when two nominally separate entities are actually part of a single enterprise so that for all purposes there is but one employer. N.L.R.B. v. Western Temporary Services Inc., 821 F.2d 1258, 1266 (7th Cir.1987). This standard has been applied to cases arising under the ADEA, and separate business entities are considered to be a single employer for purposes of counting the number of employees when certain factors are met: first, interrelation of operations such as common offices, records and equipment; second, common management, directors and personnel; third, centralized control of labor relations and personnel; and fourth, common ownership and financial control. York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); see also Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991) (Title VII case); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987) (Title VII case). No one factor is controlling. Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983). Although centralized control over labor relations is the central concern, Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983), there may be a finding of an integrated employer without centralized control, Armbruster, 711 F.2d at 1338. However, to be considered an integrated employer, the relationship between the two entities must be highly integrated with respect to ownership and operations. McKenzie, 834 F.2d at 933. The facts of this case do not apply neatly to the four factors because Brown owns both defendant and IDC and has control over the labor relations of both. While it could be argued that his combined ownership and centralized control over labor relations indicates that defendant and IDC are integrated, such an argument proves too much because Brown’s centralized control over labor relations is merely based on the fact that he owns both companies. The critical inquiry is whether his actions taken regarding labor relations were done" }, { "docid": "8053432", "title": "", "text": "at 1362. For example, the National Labor Relations Board (NLRB) developed the single employer doctrine, which treats two nominally independent enterprises as a single employer, in order to protect the collective bargaining rights of employees and to advance industrial stability. See Radio & Television Broadcast Technicians Local Union 1264. v. Broadcast Serv. of Mobile, 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam) (adopting single employer criteria established by the NLRB); see also Miriam Goldstein, Saks & Company v. NLRB: Toward the Emasculation of the Successorship Doctrine?, 48 Brook.L.Rev. 1103, 1106 n. 9 (1982) (discussing single employer doctrine). More recently, the single employer doctrine has been extended to the civil rights context. Trevino v. Celanese Corp., 701 F.2d 397, 403-04 (5th Cir.1983) (applying single employer doctrine under Title VII); York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982) (applying the single employer doctrine under the Age Discrimination in Employment Act). Under the single employer doctrine, four factors determine whether two entities will be regarded as a single employer subject to joint liability for employment-related acts. They are: (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. Radio and Television Broadcast, 380 U.S. at 256, 85 S.Ct. at 877; Perry v. Manocherian, 675 F.Supp. 1417, 1425 (S.D.N.Y.1987). Although no one factor is determinative, Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983); Owens v. American Nat'l Red Cross, 673 F.Supp. 1156, 1161 (D.Conn.1987), and, indeed, all four factors are not required, Armbruster, 711 F.2d at 1338, control of labor relations is the central concern, U.S. West, Inc., 3 F.3d at 1363; Trevino, 701 F.2d at 404; Owens, 673 F.Supp. at 1161. In other words, the policy underlying the single employer doctrine is the fairness of imposing liability for labor infractions where two nominally independent entities do not act under an arm’s length relationship. See Armbruster, 711 F.2d at 1337 (suggesting that indicia of interrelatedness justifies joint responsibility for acts of immediate employer). That policy is most implicated where one entity actually had control over the labor" }, { "docid": "3847417", "title": "", "text": "as his Title VII claims do. The two claims are based on identical allegations of discrimination; both are based on the hiring decisions made after Medine’s comments. The only real difference between the claims is in the characterization of Johnson’s status as an independent contractor or as an employee. Thus, the district court erred in concluding that Johnson’s claims did not relate back under Rule 15. Johnson’s claims are not barred by limitations. Single Enterprise Johnson further argues that the district court should have concluded that a fact question existed concerning whether Dixie and Crown formed a single enterprise. If the two formed a single enterprise, Johnson contends, Crown would be liable for Dixie’s actions. Johnson’s argument is based on the Supreme Court’s Radio Union test for determining a single enterprise under the Fair Labor Standards Act. He argues that this single enterprise test, which this circuit has applied in Title VII and other employment discrimination cases, should also apply to § 1981 cases. This circuit first applied the four-factor single enterprise test to determine whether two entities served as a single employer for Title VII purposes in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four relevant factors are “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Trevino, 701 F.2d at 404. The second factor has been refined into an inquiry about “[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” Id. (quoting Odriozola v. Superior Cosmetic Distribs., Inc., 531 F.Supp. 1070, 1076 (D.P.R.1982)). This factor, furthermore, has been . called the most important one. Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997). But see Carpenters Local Union No. 1846 of United Brotherhood of Carpenters v. Pratt-Farnsworth, Inc., 690 F.2d 489, 505 (5th Cir.1982) (“[N]o one of the factors is controlling ... nor need all criteria be present.”) (citation omitted). Assuming that the Trevino test applies, Johnson seems to have presented evidence of the interrelation of operations and, to a lesser extent, ■ common management. Crown" }, { "docid": "8023303", "title": "", "text": "at 2510. With these standards in mind, we turn to the merits of this appeal. III Under the ADEA, a corporation like Nil cannot be held liable for discriminatory employment actions unless it qualifies as an “employer” under the statute. See 29 U.S.C. § 623. The ADEA defines an employer only as “a person engaged in industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b). This statutory definition provides little assistance in resolving the question before us. It plainly contains no basis for disregarding the venerable corporate law principle of limited liability or for otherwise extending liability to a parent corporation for the discriminatory acts of its subsidiary. We, and other courts, however, have construed the term “employer” broadly to include superficially distinct entities that are sufficiently interrelated to constitute a single, integrated enterprise. See, e.g., Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997); Rogers v. Sugar Tree Products, Inc., 7 F.3d 577, 582 (7th Cir.1993); Johnson v. Flowers Indus., Inc., 814 F.2d 978, 981 (4th Cir.1987); York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982). To determine whether a parent corporation and its subsidiary may be regarded as a “single employer” under the ADEA, we apply the four-part analysis originally adopted by the Supreme Court in the context of labor disputes, see Radio Union v. Broadcast Serv., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), and extended to civil rights actions by this court in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four factors to consider include: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control. 701 F.2d at 404. This analysis ultimately focuses on the question whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation, id.; Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986), and all four" }, { "docid": "22920081", "title": "", "text": "reversing dismissal of independent contractor physician’s Title VII claim against hospital that revoked her staff privileges); see also Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1340-41 (D.C.Cir.1973) (reversing summary judgment for defendant hospital on claim brought by independent contractor/private nurse for hospital’s refusal to refer patients to him on the ground that “[cjontrol over access to the job market” and “power ... to foreclose ... access by any individual to employment opportunities” are the key criteria in determining potential Title VII liability of employers). Courts of appeals that have addressed the question of parent-subsidiary liability have adopted a flexible four-part test aimed at determining the degree of interrelationship between the two entities. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983). Thus, the Fifth Circuit has held that [A] parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir.1994) (internal quotation marks omitted); see also Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977) (applying the four-part test to consolidate two separate corporations as the plaintiffs employer under Title VII). The National Labor Relations Board originally developed this test as a means for ascertaining whether two entities constituted a single employer in the context of labor disputes, and that test was subsequently approved by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). However, “[cjourts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations.” Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). The Fifth Circuit has held that “this criterion has been further refined to the point that the critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming" }, { "docid": "14002333", "title": "", "text": "12, 55 L.Ed.2d 40 (1978), as was the statutory definition of \"employer,\" (which relates to the scope of the law's substantive provisions), we may look to constructions of the term in the Title VII (and thus the NLRA) context for guidance. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234, rehearing denied, 456 U.S. 940, 102 S.Ct. 2001, 72 L.Ed.2d 461 (1982) (ADEA modeled after Title VII); see also EEOC v. Zippo Mfg. Co., 713 F.2d 32, 36 (3d Cir.1983); cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). . The courts, in the Title VII context, have inappropriately used the terms \"single employer\" and “joint employer” interchangeably, which in fact refer to two distinct concepts. These distinctions are thoroughly discussed in NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir.1982). The \"single employer” inquiry, not applicable here, involves the question of whether two allegedly separate business enterprises should in fact be treated as a single entity. In Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), the Supreme Court recognized the validity of the National Labor Relations Board's approach in a labor dispute to determining whether various business entities constitute a \"single employer” by considering whether they \"comprise a single enterprise.” Id. The Supreme Court set out the standard for the “single employer” inquiry as follows: \"[I]n determining the relevant employer, the [National Labor Relations] Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise.... The controlling criteria ... are interrelation of operations, common management, centralized control of labor relations and common ownership.” Radio & Television Broadcast Technicians, 380 U.S. at 256, 85 S.Ct. at 877 (citations omitted). See abo McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); EEOC v. Wooster Brush Company Employees Relief Ass’n, 727 F.2d 566, 571-73 (6th Cir.1984); Trevino v. Celanese" }, { "docid": "17453040", "title": "", "text": "a four-part test - commonly called the “integrated enterprise” test or the “single employer” test - from the National Labor Relations Board (“NLRB”) to determine when two nominally distinct companies should be treated as a single entity under Title VII. See Anderson v. Pacific Maritime Association, 336 F.3d 924, 929 (9th Cir.2003); RC Aluminum Industries, Inc. v. National Labor Relations Board, 326 F.3d 235, 239 (D.C.Cir.2003); Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir.2000); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178, 1184 (8th Cir.1998); Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993); McKenzie, 834 F.2d at 933; Childs, 719 F.2d at 1382-83; Armbruster, 711 F.2d at 1336-38; Trevino v. Celanese Corp., 701 F.2d 397, 403-04 (5th Cir.1983). The four factors of the NLRB test are “(1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control.” Artis, 161 F.3d at 1184 (citation omitted); see also NLRB v. Browning-Ferris Indus, of Pa., 691 F.2d 1117, 1122 (3d Cir.1982) (discussing the test in the labor context). Among these factors, “[n]o single factor is dispositive; rather, single employer status under this test ‘ultimately depends on all the circumstances of the case.’ ” Pearson v. Component Tech. Corp., 247 F.3d 471, 486 (3d Cir.2001) (describing but not adopting the test in a case applying the Worker Adjustment Retraining Notification Act) (citation omitted). “[T]he heart of the inquiry is whether there is an absence of an arm’s-length relationship among the companies.” Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir.1999) (citations omitted); Browning-Ferris, 691 F.2d at 1122. Moreover, “[cjourts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations.” Trevino, 701 F.2d at 404. The Seventh Circuit has rejected the NLRB’s four-factor test as unhelpful in the anti-discrimination context. Papa v. Katy Indus., Inc., 166 F.3d 937, 942-43 (7th Cir.1999). In addition, other courts have occasionally listed, but essentially ignored, the NLRB factors in Title VII cases, focusing instead on which entity" }, { "docid": "3869050", "title": "", "text": "court to assert subject matter jurisdiction over each. E.g., Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.), reh. den., 707 F.2d 515 (5th Cir.1983); Perrin v. Florida Power & Light Co., 35 Fair Empl.Prac. Cas. (BNA) 117 (S.D.Fla.1984); Nation v. Winn-Dixie Stores, Inc., 567 F.Supp. 997 (N.D.Ga.1983). To assert a joint employer claim, a plaintiff must show either that two entities operated as a “joint enterprise” or that one entity acted as the other’s agent with regard to employment practices. E.g., Nation, 567 F.Supp. at 1010; EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). The “integrated enterprise” doctrine imposes a four-part inquiry regarding the relationship of the two entities: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. Upjohn, 445 F.Supp. at 639 (adopting test articulated in Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965)). For the agency theory, the claimant must show that one entity acted as the other’s agent with respect to employment practices. Ingber v. Ramada Inns, Inc., 20 Fair Empl.Prac.Cas. (BNA) 1006 (N.D. Ga.1979). For either the integrated enterprise or agency theory, the primary question must be who made the final decision regarding employment matters related to the plaintiff. Trevino, 701 F.2d at 404. Given the facts of the instant case, the court cannot find the Associated Bureaus was Greason’s employer under either theory. The evidence does show the two bureaus had the same executive committee chairman, and the membership of both bureaus and their executive committees apparently included some or all of the same parties. This evidence indicates that the same persons or entities may have made management decisions for each bureau. However, that evidence suggests only that both bureaus may have been controlled in whole or in part by other persons or entities, not that defendant controlled or managed the Storage Bureau. Similarly, to the extent the two bureaus conducted related operations for their member railroads, there is no evidence the Associated Bureaus exercised any control over these activities or operations of" }, { "docid": "7233758", "title": "", "text": "this rule, known as the single employer doctrine, is only appropriate where there is “‘sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer.’ ” Herman v. Blockbuster Entertainment Group, 18 F.Supp.2d 304, 308 (S.D.N.Y.1998), aff'd mem., 182 F.3d 899 (2d Cir.1999) (quoting Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983)). In Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995), the Second Circuit adopted a four-part test “aimed at determining the degree of interrelationship between the two entities.” Under that test, a “parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id. (citing Armbruster, 711 F.2d at 1337). The critical question, according to the court, is: “ ‘What entity made the final decisions regarding employment matters related to the person claiming discrimination?’ ” Id. (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). A plaintiff “need not show that each factor exists in order to establish an integrated enterprise, nor is there one factor a plaintiff must show.” Regan v. In the Heat of the Nite, Inc., 93 Civ. 862, 1995 WL 413249, at *3 (S.D.N.Y. July 12, 1995) (citing Armbruster, 711 F.2d at 1337-38). In analyzing these factors, however, courts should focus on the second factor: centralized control of labor relations. Herman, 18 F.Supp.2d at 309. This Court has reviewed the following items to determine whether a sufficient interrelation of operation exists: (1) whether the parent was involved directly in the subsidiary’s daily decisions relating to production, distribution, marketing, and advertising; (2) whether the two entities shared employees, services, records and equipment; (3) whether the entities commingled bank accounts, accounts receivable, inventories, and credit lines; (4) whether the parent maintained the subsidiary’s books; (5) whether the parent issued the subsidiary’s paychecks; and (6) whether the" }, { "docid": "3869049", "title": "", "text": "S.Ct. 1817, 36 L.Ed.2d 668 (1973)). In the instant case, there is no dispute that Greason is a member of a racial minority. The issue before the court is whether he was either terminated or denied employment or other related benefits by the defendant, Associated Bureaus. If not, then the court need not address the merits of his racial discrimination claim. Greason acknowledges that he was employed by the Storage Bureau. He argues, however, that the Storage Bureau was funded and controlled by the Associated Bureaus, making the latter his “employer” for the purpose of this action. Because the Storage Bureau and the Associated Bureaus executive committees had the same chairman, he contends, the Associated Bureaus exercised sufficient managerial and administrative control over the Storage Bureau for the Associated Bureaus to be considered his employer. Courts considering Title VII and Section 1981 claims have adopted the liberal rules used in National Labor Relations Act cases to determine whether two or more separate business entities are so related as to be “joint employers” to enable the court to assert subject matter jurisdiction over each. E.g., Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.), reh. den., 707 F.2d 515 (5th Cir.1983); Perrin v. Florida Power & Light Co., 35 Fair Empl.Prac. Cas. (BNA) 117 (S.D.Fla.1984); Nation v. Winn-Dixie Stores, Inc., 567 F.Supp. 997 (N.D.Ga.1983). To assert a joint employer claim, a plaintiff must show either that two entities operated as a “joint enterprise” or that one entity acted as the other’s agent with regard to employment practices. E.g., Nation, 567 F.Supp. at 1010; EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). The “integrated enterprise” doctrine imposes a four-part inquiry regarding the relationship of the two entities: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. Upjohn, 445 F.Supp. at 639 (adopting test articulated in Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965)). For the agency theory, the claimant must show that one entity acted as the other’s agent with respect" } ]

[ { "docid": "16837128", "title": "", "text": "272 N.Y. 323, 6 N.E.2d 40 (1936); Tillman v. Komar, 259 N.Y. 133, 181 N.E. 75 (1932); Beecher v. Vogt Manufacturing Co., 227 N.Y. 468, 125 N.E. 831 (1920). The fact that bankruptcy intervened between the time when the attorney commenced the action on behalf of the debtor and when the funds were received by him in satisfaction of the cause of action does not detract from the attorney’s right to rely upon the attorney’s statutory charging lien; it relates back to the initiation of the action. Judge Ryan in this District, in In re E.C. Ernst, Inc., 4 B.R. 317 at 320 (Bkrtey.S.D.N.Y.1980) said: “Since the lien relates back to the commencement of F & G’s services (i.e., pre-petition), the fact that the debtors each filed a Chapter XI petition does not affect the lien as to those relevant pre-petition activities.” The relation back concept is consistent with the provision in Code § 546(b) that the rights and powers of the trustee under sections 544, 545 or 549 of the Code are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in the property before the date of such perfection. See In re Florillo & Company, 19 B.R. 21 (Bkrtcy.S.D.N.Y.1982) where a mechanic’s lien related back to the commencement of work so as to defeat a debtor in possession that was asserting its avoiding powers in its capacity as trustee. The attorney need not file or record a charging lien in order to perfect it; the lien takes effect from the time the services were commenced, and a trustee in a subsequent bankruptcy case involving the client takes the property of the estate subject to such lien. In re Pacific Far East Line, Inc., 654 F.2d 664 (9th Cir.1981); Hanna Paint Mfg. Co. v. Rodey, Dickason, Sloan, Akin & Robb, 298 F.2d 371 (10th Cir.1962); In re Knudsen Bros. Dairy, Inc., 24 B.R. 418 (Bkrtcy.Conn.1982); In re TLC of Lake Wales, Inc., 13 B.R. 593 (Bkrtcy.M.D.Fla.1981); In re E.C. Ernst, Inc., 4 B.R. 317 (Bkrtcy.S.D.N.Y.1980)." } ]

[ { "docid": "14949757", "title": "", "text": "sitting in New York. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir.1998). Specifically, § 475 provides, in pertinent part, that: [f]rom the commencement of an action ... or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come.... N.Y. Judiciary Law § 475 (McKinney 1983). Significantly, § 475 does not authorize the court to impose a charging lien against all property owned by the attorney’s client. See In re Rosenman & Colin v. Richard, 850 F.2d 57, 61 (2d Cir.1988) (citing In re Shirley Duke Assocs., 611 F.2d 15, 18 (2d Cir.1979); Morey v. Schuster, 159 A.D. 602, 609, 145 N.Y.S. 258, 262-63 (1913), aff'd, 217 N.Y. 639, 112 N.E. 1066 (1916)). “Rather, an attorney is limited to a hen on the judgment in his Ghent’s favor.” Id. (internal quotations omitted). An attorney’s right to collect out of funds or property he obtains for his client is premised on the theory that “ ‘it is the attorney who has created the fund out of which he is paid by his efforts.’ ” Id. To create a charging hen, an attorney’s efforts must result in (1) a client assert ing a claim, (2) which can result in proceeds (3) payable to or for the client’s benefit. See Cassirer v. Invex, Ltd. (In re Schick), 215 B.R. 13, 15 (Bankr.S.D.N.Y.1997) (citing United Orient Bank v. 450 West 31st St. Owners Corp., 155 Misc.2d 675, 589 N.Y.S.2d 390 (Sup.Ct.1992)). Therefore, a defendant’s attorney cannot obtain a charging lien unless the client asserts a counterclaim. See id. (citations omitted). The Second Circuit has held that, “[a]n attorney who merely defends or protects his client’s interest in property without obtaining an affirmative recovery is not entitled to a lien on the property that his client retains.” In re Rosenman & Colin, 850 F.2d at 61" }, { "docid": "21710991", "title": "", "text": "only mechanism available to ensure satisfaction of the lien. It is this fact that makes the hen a possessory lien, not the label or lack thereof.” Hayden, 308 B.R. at 434; see also In re Ingram, 508 B.R. 98, 102-03 (Bankr. E.D. Wis, 2014) (noting that a creditor with a possessory lien must retain possession of the property in order to maintain perfection of its lien). The Debtor argues that § 9-92-080(f) of the M.C.C. does not create a “true” pos-sessory lien because it is inconsistent with the nature of possessory liens. Specifically, she argues that: a true possessory lien (1) must be a consensual lien; (2) may attach only to the property that gave rise to the underlying claim; and (3) cannot be released for less than full payment. The Debtor’s arguments are without merit: First, a statutory lien is non-consensual by nature. See Rushton v. State Bank of S. Utah (In re Gledhill), 164 F.3d 1338, 1342 (10th Cir. 1999) (stating that statutory hens are “fixed by operation of law without consent of debtor” (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989))). Thus, the Court rejects the Debtor’s argument that a posses-sory hen must be consensual. Second, there is no requirement that a statutory hen may be imposed only on certain property. A hen created by statute is limited in operation and extent only by the terms of the statute. Wilson v. F.B. McAfoos & Co., 344 Ill.App.3d 452, 279 Ill.Dec. 335, 800 N.E.2d 177, 181 (2003). “[L]ien laws are liberally construed to effect the purpose intended by the legislature.” Id. (citing Gaskill, 249 Ill.App.3d 673, 188 Ill.Dec. 871, 619 N.E.2d 235). Section 9-92-080(f) of the M.C.C. broadly, without any limitations, grants the City a possessory hen in impounded vehicles. Therefore, the concept of specific or general hens found in common law possessory hens is not apphcable to the City’s statutory possessory hen. Third, the City’s statutory hen is not void simply because the City may release the hen for less than full payment in certain circumstances." }, { "docid": "15554361", "title": "", "text": "as to the debtor, other lienors necessarily have priority over it. And, as mentioned, legislative history indicates the amendment was not intended to effect any substantive change. In short, the Marsh hen is junior to the hens of the Bank and the other creditors. Section 551 does not change this. It merely states that a hen avoided under section 544 (and the other enumerated sections) is “preserved for the benefit of the es-tate____” Preservation is just that. It simply puts the estate in the shoes of the creditor whose hen is avoided. It does nothing to enhance (or detract from) the rights of that creditor viz-a-viz other creditors. This is the holding of ah decisions to which we have been directed. See, e.g., C & C Co. v. Seattle-First Nat’l Bank (In re Coal-X Ltd., “76”), 103 B.R. 276 (D.Utah 1986) (avoided and preserved landlord’s hen retains its relative priority), rev’d on other grounds, 881 F.2d 865 (10th Cir.1989); Connelly v. Marine Midland Bank, N.A., 61 B.R. 748 (W.D.N.Y.1986) (in avoiding and preserving creditor’s unperfected security interest trustee steps into shoes of that creditor and is junior to later perfected security interest); In re DeLancey, 94 B.R. 311 (Bankr.S.D.N.Y.1988) (avoidance under section 544 and preservation of unperfected attachment lien gives trustee no priority over later perfected hen); Tennessee Mach. Co. v. Appalachian Energy Indus., Inc. (In re Appalachian Energy Indus., Inc.), 25 B.R. 515 (Bankr.M.D.Tenn.1982) (unperfected and preserved hen remains junior to later perfected hen). See also Retail Clerks Welfare Trust v. McCarty (In re Van De Kamp’s Dutch Bakeries), 908 F.2d 517 (9th Cir.1990) (security interest avoided as a fraudulent transfer and preserved by trustee remains senior to later perfected hen even though later lienholder might also have been successful in avoiding security interest as a fraudulent transfer). The bankruptcy judge’s reasoning does not appear to be inconsistent with this. His decision accompanying the order states only that the avoided hen is preserved for the estate pursuant to section 551. As authority he cites his prior decision in Foley v. Peoples Heritage Bank (In re Foley), 1994 WL 178150" }, { "docid": "12869462", "title": "", "text": "appropriate recording office. Section 339-aa of the Real Property Law provides, in pertinent part, as follows: The lien provided for in the immediately preceding section shall be effective from and after the filing in the office of the recording officer in which the declaration is filed a verified notice of lien ...; and shall continue in effect until all sums secured thereby, with the interest thereon, shall have been fully paid or until expiration six years from the date of filing, whichever occurs sooner.... Once the condominium files a notice of lien, the hen extends to subsequently accruing, unpaid common charges and accrued interest due up to the time of the sale or conveyance. Washington Federal Sav. & Loan Ass’n v. Schneider, 95 Misc.2d 924, 929, 408 N.Y.S.2d 588, 590 (Sup.Ct.Rockland Co.1978); see In re Raymond, 129 B.R. 354, 362 (Bankr.S.D.N.Y.1991); see also W. Goldsmith, Practice Commentaries 553, 576; printed in Book 49, Real Property Law (McKinney’s 1989). The condominium’s hen is, however, subordinate to a recorded first mortgage. Bankers Trust Co. v. Bd. of Managers of Park 900 Condominium, 81 N.Y.2d 1033, 1036, 600 N.Y.S.2d 191, 193, 616 N.E.2d 848 (1993). Further, the hen does not, at least on its face, extend to attorney’s fees, and the Declaration of Condominium, recorded pursuant to N.Y.Real Property Law § 339-s (McKinney Supp.1995), may specifically provide otherwise. See, e.g., In re Mishkin, 85 B.R. 18, 22 (Bankr.S.D.N.Y.1988). The Condominium duly filed its notice of hen on May 18, 1988, and on October 8, 1992, the state court entered its judgment of foreclosure and sale. The judgment, inter alia, awarded the Condominium the aggregate sum of $40,363.70. This covered ah charges through July, 1991. As stated, the hen also extends to ah unpaid common charges and accrued interest up to the sale or conveyance. The serial filings have prevented the sale of the Apartment, and consequently, the statutory hen secures all unpaid common charges and accrued interest due as of the petition date. According to the Condominium’s proof, the unpaid common charges accruing after July, 1991 total $28,545.88. In addition, the aggregate interest" }, { "docid": "1093688", "title": "", "text": "to approve an interim application the Court must weigh important competing interests. Counsel rendering the “exacting services that bankruptcy cases often require,” In re Henning, 55 B.R. 682, 684 (Bkrtcy.D.S.D.1985), should not have to finance their representation by being required to forego compensation until full administration — a period which may amount to years. See 2 Collier on Bankruptcy 11 331.02 & .03 (1988). On the other hand the Court must weigh the interests of preserving the estate and protecting its various classes of creditors. See Henning. Analysis The Court agrees with those courts which state that as a general rule interim debtor’s attorney’s fees may not be paid from an undersecured creditor’s collateral. In re Cascade Hydraulics and Utility Service, Inc., 815 F.2d 546 (9th Cir.1987); In re Flagstaff Food Service Corp., 739 F.2d 73 (2nd Cir.1984); Matter of Trim-X, Inc., 695 F.2d 296 (7th Cir.1982); American Resources, In re Fleeman, 73 B.R. 579 (Bkrtcy.M.D.Ga.1987); In re Birdsboro Casting Corp., 69 B.R. 955 (Bkrtcy.E.D.Pa.1987). See also, 3 Collier on Bankruptcy ¶ 507.02[2] (15th ed. 1988); 1 W. Norton, Bankruptcy Law and Practice, § 12.02 (1981); Bellman Farms; In re New England Carpet Co., 744 F.2d 16 (2nd Cir.1984); In re Staunton Industries, Inc., B.R. 501 (Bkrtcy.E.D.Mich.1987); In re Nana Daly’s Pub, Ltd., 67 B.R. 782 (Bkrtcy.E.D.N.Y.1986); In re Kinderhaus Corp., 58 B.R. 94 (Bkrtcy.D.Minn.1986). Such an award would contravene the distributional scheme of the Bankruptcy Code. As the American Resources Court explained: Payment of professional fees in Chapter 11 cases is a favored object of the Bankruptcy Code, but is no more favored than protecting the rights of creditors with secured claims. As a general rule, expenses of administration must be satisfied from assets of the estate not subject to liens. A secured creditor’s interest in its collateral is a substantive property right created by nonbankruptcy law which may not be substantially impaired when bankruptcy intervenes. Generally, the only valid liens that are subordinated to administration expenses are tax liens and ERISA liens. 11 U.S.C. 724(b) and (d)[.] A secured creditor is not to be deprived of the benefit" }, { "docid": "16967997", "title": "", "text": "homestead exemption. After a hearing, the bankruptcy court entered a summary order holding that Weed’s hen on Washington’s homestead property was a “judicial hen” which would be avoided pursuant to 11 U.S.C. § 522(f)(1). Weed appealed the bankruptcy court’s order to the district court, which reversed. Although Washington raised numerous issues in the district court, the district court focused exclusively on whether an attorney’s “charging hen,” as defined by Florida state law, is a “judicial hen” that can be avoided pursuant to § 522(f)(1) of the Bankruptcy Code. Assuming that Weed’s hen on Washington’s property was a valid attorney’s charging hen under Florida law and finding that such charging hens are not “judicial hens” that may be avoided under § 522(f)(1), the district court held that Weed’s hen on Washington’s homestead property was not avoidable under § 522(f)(1). Washington appealed. II. DISCUSSION A. Attorney’s Charging Liens Under Florida Law While federal law controls the bankruptcy issues in this case, state law governs the determination of whether a lien has been created in the context of a bankruptcy proceeding. Grant v. Kaufman, P.A. (In re Hagen), 922 F.2d 742, 744 n. 2 (11th Cir.1991)(“It is agreed that state law applies in determining the creation of a lien and the consequences and rights attributable to the lien, other than the bankruptcy statutory issues.”)(citing Matter of Fitterer Eng’g Assoc., Inc., 27 B.R. 878, 880 (Bankr.E.D.Mich.1983)). Under Florida law, the equitable right of attorneys to have costs and fees owed for legal services secured by the judgment or recovery in a lawsuit has been recognized for over a century. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). The equitable mechanism recognized by Florida law for securing this right is an attorney’s charging lien. Id. In order for an attorney’s charging lien to be imposed, Florida law requires: (1) a contract between the attorney and client; (2) an express or implied understanding that payment is either contingent upon recovery or will be paid from the recovery; (3) an attempt by the client to avoid paying or a dispute" }, { "docid": "17429102", "title": "", "text": "the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of proving that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to demonstrate that a triable issue of fact exists which precludes summary judgment against the nonmovant. Holland v. Double G. Coal Co., 898 F.Supp. 351 (S.D.W.Va.1995). For a genuine issue of fact to exist, there must be sufficient evidence that a reasonable jury could find, by a preponderance of the evidence, for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where competing hens involve a federal tax, federal law controls. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); In re Darnell, 834 F.2d 1263, 1269 (6th Cir.1987). Under federal law, the priority of competing liens is determined by the principle of “first in time is first in right.” United States v. McDermott, 507 U.S. 447, 449, 113 S.Ct. 1526, 123 L.Ed.2d 128 (1993); United States v. Vermont, 377 U.S. 351, 355, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964); United States v. New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954); In re Priest, 712 F.2d 1326, 1327-28 (9th Cir.1983); In re Alliance Transp., Inc., 47 B.R. 743, 745 (Bankr.N.D.Ga.1985). In the present case, it is undisputed that the United States’ tax hens were filed in July and September 1995, while the plaintiffs mortgage hen was executed on February 14, 2000 and recorded on March 6, 2000. Thus, the tax hens are “first in time” and have priority over the plaintiffs mortgage hen. However, the plaintiff has argued that it has priority over the other hens on the subject property on the basis that it is subrogated to the rights of First Bank of Marietta as a result of satisfying the purchase money mortgage on the subject property. Under Ohio law, “[i]n order to entitle one to" }, { "docid": "16324593", "title": "", "text": "A. The “New Value” Defense A transferee, may, under § 547(c)(4) , offset a preferential transfer to the extent he gave the debtor “new value” after the date of the transfer, and the “new value” remains unpaid. Charisma Inv. Co. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); 5 Alan N. Resnick & Hen-RY J. SommeR, Collier on Bankruptcy ¶ 547.04[4][e], at 547-68.4 (15th ed. rev. 2004). “New value” means, inter alia, “money or money’s worth in goods, services, or credit, ... but does not include an obligation substituted for an existing obligation.” 11 U.S.C. § 547(a)(2). The “new value” exception encourages creditors to deal with troubled businesses, Southern Tech. College, Inc. v. Hood, 89 F.3d 1381, 1384 (8th Cir.1996)(quoting Kroh Bros. Dev. Co. v. Continental Construction Engineers, Inc. (In re Kroh Bros. Dev. Co.), 930 F.2d 648, 651 (8th Cir.1991)); In re Jet Florida Sys., Inc., 841 F.2d at 1083; see Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 (5th Cir.1994), and promotes equality of treatment among eredi-tors. In re Jet Florida Sys., Inc., 841 F.2d at 1083-84. It recognizes that the “new value” effectively repays the earlier preference, and offsets the harm to the debtor’s other creditors. See In re Toyota of Jefferson, Inc., 14 F.3d at 1091; In re Kroh Bros. Dev. Co., 930 F.2d at 652; In re Jet Florida Sys., Inc., 841 F.2d at 1084. Accordingly, “the relevant inquiry under section 547(c)(4) is whether the new value replenishes the estate.” In re Kroh Bros. Dev. Co., 930 F.2d at 652; accord Southern Tech. College, Inc. v. Hood, 89 F.3d at 1384; In re Toyota of Jefferson, Inc., 14 F.3d at 1091-92. B. Motion For Judgment On Partial Findings At trial, Level-3 had the burden of proving the “new value” defense by a preponderance of the evidence. See 11 U.S.C. § 547(g); Cassirer v. Herskowitz (In re Schick), 234 B.R. 337, 348 (Bankr.S.D.N.Y.1999). In a non-jury trial, if a party with the burden of proving a claim or defense fails to establish his" }, { "docid": "15579992", "title": "", "text": "his legal services for the debtor, there was no bankruptcy estate. Therefore, these prepetition services may not qualify as an administrative expense priority under 11 U.S.C. § 503(b)(3)(D) as a substantial contribution in a ease under chapter 11. Moreover, Mann was not retained as special counsel pursuant to 11 U.S.C. § 327(a) to perform any post-petition legal services for the debtor. However, this does not mean that Mann is simply a prepetition unsecured general creditor. Under common law equitable principles, an attorney is given a charging lien for fees and costs out of a judgment or settlement obtained in a suit in which the attorney performed legal services. See In re Tarricone, Inc., 76 B.R. 53, 55 (Bankr.S.D.N.Y. 1987). Many states, including New York, have codified this charging lien concept for the protection of earned attorneys’ fees. Section 475 of the New York Judiciary Law provides in relevant part as follows: “From the commencement of an action or special proceeding ..., or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whatever hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment, or final order. The Court upon petition of the client or attorney must determine and enforce the lien.” N.Y. Judiciary Law § 475. The fact that bankruptcy may have intervened between the time when the attorney commenced the action on behalf of the debtor and when the funds were received by him in satisfaction or settlement of the cause of action does not detract from the attorney’s right to rely on the charging lien. The lien relates back to the initiation of the action. In re E.C. Ernst, Inc., 4 B.R. 317, 320 (Bankr.S.D.N.Y.1980). The attorney need not file or record a charging lien in order to perfect it. The lien takes effect from the time the services were" }, { "docid": "21611240", "title": "", "text": "avoid the fixing of a statutory hen that is not avoidable under section 545. Mechanics’ hens duly filed pursuant to state law are not avoidable under section 545. Consequently, this court disagrees with the trustee’s position. Id. at 60. Although the hen in that case received the benefit of New York’s “relation-back” provision, the court’s preference decision did not rely on that fact. The court looked instead to whether the henor had filed his notice of hen within the statutory time period. See also In re Wisner, 77 B.R. 395, 397-98 (Bankr.N.D.N.Y.1987) (holding that mechanic’s hen arising under New York Lien Law is “statutory hen” as opposed to “judicial hen”). In In re APC Construction, Inc., 132 B.R. 690 (D.Vt.1991), the henor filed his notice of hen under Vermont’s hen law within the ninety-day period prior to the debtor’s filing of bankruptcy. The district court determined that the hen was a statutory hen because it took effect when the notice of hen was filed and thus existed independently of any judicial process. Id. at 694. The district court found insignificant that the henor was required by law to obtain a judicial writ of attachment within three months after filing his hen because this step was required only to keep the hen in effect. The court reasoned that the Bankruptcy Code categorizes a hen by the way it is established, not by how it is preserved. A statutory hen is a hen “arising” because of “specified circumstances or conditions” laid out in the statute. Id. (quoting 11 U.S.C. § 101(47) (1986), now found at § 101(53)). Several other courts have also observed that mechanic’s hens are statutory hens because they arise strictly by operation of statute and not by agreement between the parties or judicial action. See, e.g., In re WWG Indus., Inc., 772 F.2d 810, 812 (11th Cir.1985); In re Minton Group, Inc., 28 B.R. 789, 791 (Bankr.S.D.N.Y.1983); In re Seel, 22 B.R. 692, 695-96 (Bankr.D.Kan.1982); In re Ribeiro, 7 B.R. 359, 361 (Bankr.D.Mass. 1980); In re Saberman, 3 B.R. 316, 318 (Bankr.N.D.Ill.1980). We reject appellees’ argument that a mechanic’s" }, { "docid": "15579993", "title": "", "text": "a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whatever hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment, or final order. The Court upon petition of the client or attorney must determine and enforce the lien.” N.Y. Judiciary Law § 475. The fact that bankruptcy may have intervened between the time when the attorney commenced the action on behalf of the debtor and when the funds were received by him in satisfaction or settlement of the cause of action does not detract from the attorney’s right to rely on the charging lien. The lien relates back to the initiation of the action. In re E.C. Ernst, Inc., 4 B.R. 317, 320 (Bankr.S.D.N.Y.1980). The attorney need not file or record a charging lien in order to perfect it. The lien takes effect from the time the services were commenced, and a trustee in a subsequent bankruptcy case involving the client takes the property or fund for the estate subject to such hen. In re Pacific Far East Line, Inc., 654 F.2d 664 (9th Cir.1981); Hanna Paint Mfg., v. Rodney, Dickason, Sloan, Akin & Robb, 298 F.2d 371 (10th Cir.1962); In re Tarricone, Inc., 76 B.R. at 56; In re PDQ Copy Center, Inc., 27 B.R. 123, 125 (Bankr.S.D.N.Y.1983). The $45,000.00 settlement fund was produced by Mann as a result of the state court litigation which he commenced on behalf of the debtor. Accordingly, the legal services which Mann performed entitle him to claim a charging hen against the estate to the extent of the settlement fund which he produced. Gordon v. Shirley Duke Assocs., A.P.I., 611 F.2d 15 (2nd Cir.1979). Under the circumstances, a 25% fee for obtaining the settlement is reasonable. Therefore, Mann is entitled to receive the sum of $11,-250.00 as his fee for the legal services which he performed in connection with the settlement of the debtor’s state court htigation," }, { "docid": "13660786", "title": "", "text": "of Catli v. Catli (In re Catli), 999 F.2d 1405, 1406 (9th Cir.1993) (burden is on the debtor to prove entitlement to lien avoidance); Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (the preponderance of the evidence standard applies unless “particularly important individual interests or rights are at stake”). The courts are split as to whether an exemption that is established by default due to the lack of a timely objection may be substantively challenged by a judicial lien creditor defending its hen from avoidance under section 522(f) of the Bankruptcy Code. See In re Chinosorn, 243 B.R. 688, 697-98 (Bankr.N.D.Ill.2000) (discussing the split of authority). In this case, however, NAH does not contest the debt- or’s entitlement to the $1.00 exemption that was claimed in the subject real estate. Accordingly, we need not take a position with regard to the foregoing split of authority. But see Meseraull v. Rick Miller Constr., Inc., 1996 WL 185736, *1 (8th Cir.1996) (unpublished table opinion) (suggesting that although an exemption established by default may not be subsequently challenged, such an exemption does not necessarily provide a sufficient basis for lien avoidance, citing with approval In re Montgomery, 80 B.R. 385, 388 (Bankr.W.D.Tex.1987) and In re Indvik, 118 B.R. 993, 1007 (Bankr.N.D.Iowa 1990)). In this case, the debtor’s schedules disclose a first priority mortgage on the subject parcel of real estate with an outstanding balance that exceeds the total value of the parcel. Under such circumstances, it is difficult to fathom how NAH’s judicial lien could impair an exemption “to which the debtor would have been entitled” in the absence of said Hen. 11 U.S.C. § 522(f)(1); Owen v. Owen, 500 U.S. 305, 310-12, 111 S.Ct. 1833, 1836-37, 114 L.Ed.2d 350 (1991). However, as NAH asks that we affirm the bankruptcy court’s Hen avoidance order and concedes that the judgment Hen at issue should be avoided to the extent that it impairs the debtor’s $1.00 exemption, we need not decide this issue. In his brief, the debtor mischaracterizes NAH’s defense of the Hen avoidance action as an" }, { "docid": "18608252", "title": "", "text": "of eases the Trustee relies upon is neither persuasive nor controlling, especially with respect to those parts subject to UNO’s hen claims arising under Florida and Texas statutes. The Court is not persuaded that the language used under the claimed statutory hens or logic dictates that UNO’s hens are lost ipso facto by its concurrent extension of credit terms to Midway. Finally, the Trustee also contends that certain of the parts are not currently in UNO’s possession thereby defeating the possessory hen claims, even if UNC has valid hen claims. It is not clear from the limited record before the Court which of the subject parts are or are not still in UNO’s possession, much less undisputed evidence on the alleged lack of equity therein as UNC has alleged for the rehef sought under section 362(d)(2) or the alleged depreciation or decline in value thereof as asserted as a lack of adequate protection for the rehef sought under section 362(d)(1). V. CONCLUSION For the foregoing reasons, the Court hereby denies the Trustee’s motion for summary judgment. The previously entered Final Pretrial Order setting this proceeding for trial beginning July 11, 1994, remains in full force and effect. This Opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021. . See In re Heinsheimer, 214 N.Y. 361, 108 N.E. 636 (1915); Clark Bros. & Co. v. Pou, 20 F.2d 74 (4th Cir.1927). Some other courts have followed this line of reasoning. See Welded Tube Co. of America v. Phoenix Steel Corp., 377 F.Supp. 74 (E.D.Pa.1974), aff'd, 512 F.2d 342 (3rd Cir.1975); Carbon Silk Mills Co. v. Powell, 108 F.2d 474 (3d Cir.1939); In re Supreme Lingerie Co., 90 F.Supp. 456 (S.D.N.Y.1950), aff'd, 186 F.2d 152 (2d Cir. 1951); Food Specialties, Inc. v. John C. Dowd, Inc., 339 Mass. 735, 162 N.E.2d 276 (1959); Stone v. Allied Clothing Corp., 140 N.J.Eq. 224, 54 A.2d 625 (1947); In re First Hartford Corp., 25 B.R. 563 (Bankr.S.D.N.Y.1982), aff'd, 33 B.R. 126" }, { "docid": "18747166", "title": "", "text": "have the judgment enforced. Nichols v. Kroelinger, 46 So.2d 722 (Fla.1950). Although the charging lien does not attach until after judgment or recovery has been obtained, it relates back and takes effect from the date of the attorney’s first commencement of services. Randall v. Archer, 5 Fla. 438 (1854). A charging lien is subject to any rights in property which are valid against the client at the time the lien attaches, 4 Fla.Jur.2d Attorney’s at Law, § 162, but the lien is “superior to a creditor’s claim in whose favor execution has been levied and to a subsequent attachment, garnishment, trustee process or other lien on the money or property involved subsequent in point of time.” 7 Am.Jur.2d, Attorney’s at Law, § 289. There are no Florida cases directly in point. Several cases from other jurisdictions, however, have considered the issues involved in the present instance. Hanna Paint Mfg. Co., 298 F.2d 371 (10th Cir. 1962). In In re Miller, 17 CBC 28, 31 (E.D.Pa.1978), the Court stated: “This case fits all of the criteria, at the time the bankruptcy was filed the attorneys were looking for payment of a fund to be created, and the fund has now come into existence. Although the charging lien attached after bankruptcy, Webster v. Sweat, 65 F.2d 109 (5th Cir. 1933), it relates back and takes effect from the time the services were commenced ... thus taking priority over the receiver.” In In re E.C. Ernst, Inc., 4 B.R. 317 (Bkrtcy.S.D.N.Y.1980), the Court was confronted with a factual situation quite similar to that involved in the present instance. Although New York has a statute dealing with attorneys charging liens, that statute is quite similar to Florida’s common law. In dicta the Ernst, supra court stated “[Sjince the lien relates back to the commencement of F & G’s services (i. e. pre-pe-tition), the fact that the debtors each filed a Chapter XI petition does not affect the lien as to those relevant pre-petition activities. It is well settled that to the aforementioned extent the charging lien survives bankruptcy.” Citing, 4B Collier on Bankruptcy, at" }, { "docid": "21611241", "title": "", "text": "The district court found insignificant that the henor was required by law to obtain a judicial writ of attachment within three months after filing his hen because this step was required only to keep the hen in effect. The court reasoned that the Bankruptcy Code categorizes a hen by the way it is established, not by how it is preserved. A statutory hen is a hen “arising” because of “specified circumstances or conditions” laid out in the statute. Id. (quoting 11 U.S.C. § 101(47) (1986), now found at § 101(53)). Several other courts have also observed that mechanic’s hens are statutory hens because they arise strictly by operation of statute and not by agreement between the parties or judicial action. See, e.g., In re WWG Indus., Inc., 772 F.2d 810, 812 (11th Cir.1985); In re Minton Group, Inc., 28 B.R. 789, 791 (Bankr.S.D.N.Y.1983); In re Seel, 22 B.R. 692, 695-96 (Bankr.D.Kan.1982); In re Ribeiro, 7 B.R. 359, 361 (Bankr.D.Mass. 1980); In re Saberman, 3 B.R. 316, 318 (Bankr.N.D.Ill.1980). We reject appellees’ argument that a mechanic’s lien qualifies as a statutory lien only when the lienor files within a “relation-back” period. Appellees reason that the retroactive dating \"will usually mean that the lien becomes effective as of a date before the preference period. However, this would not be true in every case. For example, where the lienor’s work was completed in the ninety days prior to bankruptcy, the lien would not have an effective date prior to the preference period. Thus, relating back to a time before the preference period cannot be dispositive of whether a lien qualifies as a statutory lien. Accord Minton Group, 28 B.R. at 791 (“If the defendant is correct in its assertion that the attachments are statutory liens, it would be of no significance whether the efficacy of the liens related back to a point beyond the 90-day period prior to the filing of the bankruptcy petition or commenced from some point within the 90-day period.”). Appellees also argue that filing within a relation-back period is necessary because it is only under these circumstances that the" }, { "docid": "15579994", "title": "", "text": "commenced, and a trustee in a subsequent bankruptcy case involving the client takes the property or fund for the estate subject to such hen. In re Pacific Far East Line, Inc., 654 F.2d 664 (9th Cir.1981); Hanna Paint Mfg., v. Rodney, Dickason, Sloan, Akin & Robb, 298 F.2d 371 (10th Cir.1962); In re Tarricone, Inc., 76 B.R. at 56; In re PDQ Copy Center, Inc., 27 B.R. 123, 125 (Bankr.S.D.N.Y.1983). The $45,000.00 settlement fund was produced by Mann as a result of the state court litigation which he commenced on behalf of the debtor. Accordingly, the legal services which Mann performed entitle him to claim a charging hen against the estate to the extent of the settlement fund which he produced. Gordon v. Shirley Duke Assocs., A.P.I., 611 F.2d 15 (2nd Cir.1979). Under the circumstances, a 25% fee for obtaining the settlement is reasonable. Therefore, Mann is entitled to receive the sum of $11,-250.00 as his fee for the legal services which he performed in connection with the settlement of the debtor’s state court htigation, together with disbursements of $451.00. CONCLUSION OF LAW 1. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b)(2)(A). 2. The application by Mann for a legal fee in connection with the settlement of the debt- or’s state court action which produced a fund of $45,000.00 for the estate is allowed. 3. Based on the time invested, the notice and value of the legal services and the cost of comparable services, Mann is allowed a fee of $11,250.00, together with disbursements of $451.00. SETTLE ORDER in accordance with the foregoing." }, { "docid": "16967998", "title": "", "text": "a bankruptcy proceeding. Grant v. Kaufman, P.A. (In re Hagen), 922 F.2d 742, 744 n. 2 (11th Cir.1991)(“It is agreed that state law applies in determining the creation of a lien and the consequences and rights attributable to the lien, other than the bankruptcy statutory issues.”)(citing Matter of Fitterer Eng’g Assoc., Inc., 27 B.R. 878, 880 (Bankr.E.D.Mich.1983)). Under Florida law, the equitable right of attorneys to have costs and fees owed for legal services secured by the judgment or recovery in a lawsuit has been recognized for over a century. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). The equitable mechanism recognized by Florida law for securing this right is an attorney’s charging lien. Id. In order for an attorney’s charging lien to be imposed, Florida law requires: (1) a contract between the attorney and client; (2) an express or implied understanding that payment is either contingent upon recovery or will be paid from the recovery; (3) an attempt by the client to avoid paying or a dispute as to the amount of the fee; and (4) a timely notice of a request for a lien. Id. at 1385. There are no requirements under Florida law for perfecting a charging lien beyond timely notice. Id. In Sinclair, the Florida Supreme Court found that the filing of a motion to enforce such a lien provides the notice necessary to perfect it. Id. Although an attorney’s charging hen attaches to a judgment for the client, this equitable hen relates back to the commencement of the services rendered by the attorney on behalf of the client and takes effect from that time. Miles v. Katz, 405 So.2d 750, 752 (Fla. 4th DCA 1981). An attorney’s charging lien has priority over any judgment hen obtained after commencement of an attorney’s services. Id. In effect, the interest created by a valid attorney’s charging hen arises by operation of law when all of the requirements of such a lien are satisfied and is effective from the commencement of the attorney’s services in advance of any judicial action recognizing it." }, { "docid": "1201617", "title": "", "text": "provides that the powers of the trustee under § 544 are subject to any generally applicable law that permits perfection of an interest in property to relate back and be effective against an entity that acquires rights in the property before the date of such perfection. In those states which provide that an attorney’s charging lien attaches to a judgment, verdict or order and that the effective date of the lien relates back to the commencement of the attorney’s services, § 546(b) will protect the attorney’s lien from being invalidated by the trustee’s status as a hypothetical lien creditor as of the date of the filing of the petition. See, In re PDQ Copy Center, Inc., 27 B.R. 123 (Bkrtcy.S.D.N.Y.1983) (applying New York’s attorney’s lien statute); In the Matter of TLC of Lake Wales, Inc., supra, (applying Florida common law). As noted previously, although the judgment was obtained prior to the filing of the bankruptcy petition, the lien did not attach to the fund until after the conversion of the case to a Chapter 7. The general rule is that an attorney’s charging lien relates back to and is effective from the time the attorney commences his services. 7 Am.Jur.2d Attorneys at Law § 332 (1980); 2 S. Speiser, supra, § 16:21. The principle of relation back was applied in Hanna Paint Manufacturing Co. v. Rodey, Dickason, Sloan, Akin & Robb, 298 F.2d 371 (10th Cir.1962) to allow an attorney’s lien to defeat a creditor to whom a partial assignment of the judgment was made during the appeal of the judgment. The court first looked to New Mexico law to determine if an attorney’s charging lien was valid, but relied on general legal principles in stating that: The lien of an attorney for services rendered in an action relates back to, and takes effect from, the time of the commencement of the services, when it attaches to a judgment, it is superior to the claim of a creditor in whose favor execution has been levied, or to a subsequent attachment, garnishment, or trustee process, or other liens on the money" }, { "docid": "4931551", "title": "", "text": "the Pieower defendants. The Florida Actions lack the basic indicia of independence that existed with regard to the Direct Action plaintiffs’ claims in Johns-Manville, and that decision therefore provides no rule that can support the Appellants’ argument. 5. The Appellants also argue that the Wagoner Rule, and the related doctrine of in pari delicto, would bar the Trustee from asserting the claims asserted in the Florida Actions. They argue that, because those rules would bar the trustee from bringing the Florida Actions, the Florida Actions cannot be the property of the estate. “[A] bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991). “[W]hen a bankrupt corporation has joined with a third party in defrauding its creditors, the trustee cannot recover against the third party for the damages to the creditors.” Id.; see also In re Mediators, Inc., 105 F.3d 822, 826 (2d Cir.1997). “The rationale for the Wagoner rule is the fundamental principle of agency that the misconduct of managers within the scope of their employment will normally be imputed to the corporation.” In re Bennett Funding Grp., Inc., 336 F.3d 94, 100 (2d Cir.2003) (internal quotation marks omitted). The Wagoner Rule derives from the common law doctrine of in pari delicto. See, e.g., In re Hampton Hotel Investors, L.P., 289 B.R. 563, 574-76 (Bankr.S.D.N.Y.2003); Kirschner v. KPMG LLP, 15 N.Y.3d 446, 912 N.Y.S.2d 508, 938 N.E.2d 941, 947, 950 (2010). As an initial matter, the Appellants’ argument fails because “[t]he Wagoner Rule does not ... apply to causes of action that the Bankruptcy Code specifically confers on a trustee or a debtor in possession.” In re Park South Securities, LLG, 326 B.R. 505, 513 (Bankr.S.D.N.Y. 2005); see also In re Skyway Commc’ns Holding Corp., 389 B.R. 801, 809 (Bankr. M.D.Fla.2008) (in pari delicto does not apply to avoidance actions brought by a trustee pursuant to § 544). As explained above, the claims asserted in the Florida Actions are duplicative" }, { "docid": "16837127", "title": "", "text": "containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment or final order. The court upon petition of the client or attorney must determine and enforce the lien. 29 McKinney’s Consolidated Laws of New York Annotated, Judiciary § 475 (1968).” Judge Cardozo (later Mr. Justice) in Matter of Heinsheimer, 214 N.Y. 361 at 367, 108 N.E. 636 (1915) pointed out that the lien arose not when the funds were produced but rather when the attorney commenced the action out of which the proceeds arose: “The same statute that gives an attorney a lien on the judgment, gives him a lien on the cause of action, and the lien attaches the moment that the action is begun.” See also Matter of Montgomery, 272 N.Y. 323, 6 N.E.2d 40 (1936); Tillman v. Komar, 259 N.Y. 133, 181 N.E. 75 (1932); Beecher v. Vogt Manufacturing Co., 227 N.Y. 468, 125 N.E. 831 (1920). The fact that bankruptcy intervened between the time when the attorney commenced the action on behalf of the debtor and when the funds were received by him in satisfaction of the cause of action does not detract from the attorney’s right to rely upon the attorney’s statutory charging lien; it relates back to the initiation of the action. Judge Ryan in this District, in In re E.C. Ernst, Inc., 4 B.R. 317 at 320 (Bkrtey.S.D.N.Y.1980) said: “Since the lien relates back to the commencement of F & G’s services (i.e., pre-petition), the fact that the debtors each filed a Chapter XI petition does not affect the lien as to those relevant pre-petition activities.” The relation back concept is consistent with the provision in Code § 546(b) that the rights and powers of the trustee under sections 544, 545 or 549 of the Code are subject to" } ]

[ { "docid": "7811204", "title": "", "text": "“corroborating evidence that the defendant had the ability to carry out the threat is not a requirement to establish a ‘true threat’_” Id. at 708. Khorrami’s argument is that the “wanted” poster he sent to the Jewish National Fund that contained the words “Execute now” next to a picture of Yitzhak Shamir and “His blood need” next to a picture of Shimon Peres, together with disfigured pictures of other Israeli officials, American officials and officers and employees of the Jewish National Fund, was merely “political hyperbole” and could not have been interpreted by a reasonable jury as containing “true threats.” In Hoffman we emphasized the importance of the context of a statement in determining whether it is a true threat or merely political hyperbole. 806 F.2d at 707. We examined whether the statement was made “ ‘in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].”’ Hoffman, 806 F.2d at 707 (quoting Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969)). Khorrami sent the “wanted poster” to the Jewish National Fund following a six-month campaign of profane, vulgar and vicious telephone calls to the Fund’s toll-free number. He sent the poster at the same time that he also sent another threatening letter to the Fund. Khorrami drafted all of his threatening correspondence from Jewish National Fund materials, demonstrating to the Fund employees that they were dealing with an individual who had previous contact with the Fund, and he included threats against Fund officers on the same poster that contained threats to Shimon Peres and Yitzhak Shamir. Later, Jaime Negroni, a Fund employee, reasoned that it was likely that the letters and the harassing telephone calls were coming from the same individual. In the context of Khorrami’s personal vendetta campaign of telephonic and postal harassment waged against the Jewish National Fund, a reasonable jury could conclude that the recipients of Khor-rami’s “wanted”" } ]

[ { "docid": "7811209", "title": "", "text": "evidence,’ this circuit ‘view[s] the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing the prejudicial effect.’ Brown, 688 F.2d at 1117.” We have little difficulty with the admission of the tapes of conversations that allegedly took place on January 12, 1988, January 13, 1988, and February 20, 1988. With respect to Khorrami’s objection concerning the date of these calls, we note that the calls were not admitted to establish three separate and independent annoying and harassing telephone calls pursuant to 47 U.S.C. § 223(a)(1)(B) but were received to demonstrate a continuous pattern of telephone calls, threatening in nature, and relevant as to both Khorrami’s identity and his intent. The January 12 and 13 telephone calls were made within a few days of the charged January 15 telephone call and within a month of the Jewish National Fund’s receipt of the threatening correspondence. Similarly, the February 20 telephone call was made shortly after the Fund had received threatening correspondence. These calls were, thus, relevant to establish for the jury the pattern of anti-Semitic telephone calls made by a person with the same voice inflections and accent the Jewish National Fund had been receiving during the particular time frame it received the charged threatening telephone calls and letters. Telephone toll records established that telephone calls had been made from Khorrami’s residence on each of these dates and helped provide “sufficient evidence” to support the jury’s findings that Khorrami had made these telephone calls. In addition, each of these three telephone calls were made by a person with the same voice pattern making the same type of anti-Semitic statements, thereby helping to establish both the identity of Khorrami as the person placing the charged January 15 telephone call as well as the intent of the caller. Furthermore, Jaime Negroni, a JNF employee, called Khorrami’s telephone number in February 1988 and testified that the voice of the person answering this call “was the same voice that had been calling” the JNF in the previously recorded threatening calls. In light of the clearly relevant nature of Khor-rami’s statements," }, { "docid": "15975788", "title": "", "text": "other actions, “there was more than sufficient evidence to support the jury’s conclusion that [the defendant’s] ‘wanted poster’ constituted a ‘true threat.’ ” Id. at 1193. Carmichael’s website is not nearly as threatening as the ‘wanted poster’ in Khorrami. The www.carmicahaelcase.com site contains no references to killing, execution, or blood; the photographs on the site are not disfigured, and no epithets appear on the site; nor is there anything on the website otherwise comparable to such references and epithets. Moreover, there is no evidence that Carmichael has called the individuals featured on his site, nor is there evidence that he has sent them threatening letters. It is true that the term ‘informant,’ by which the www.carmichaelcase.com site refers to four government witnesses in this case, generally carries a negative connotation. The first sentence of a recent law review article nicely summarizes the word’s connotation: “To mobsters, he is a ‘rat’; to drug-dealers, a ‘snitch.’ To school children, he is a ‘tattletale’; to corporate executives, a ‘whistle-blower.’ To cops, he is an ‘informant’; to prosecutors, a ‘cooperator.’ By whatever name he is known, the person who betrays his associates to the authorities is almost universally reviled. In movies, on television, in literature, the cooperator embodies all that society holds in contempt: he is disloyal, deceitful, greedy, selfish, and weak.” Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56 Vand. L.Rev. 1, 2 (2003). DEA Agent Borland testified similarly that ‘informant’ is equivalent to the derogatory term ‘snitch,’ and even Carmichael’s counsel admitted during this court’s hearing that ‘informant’ is more than just a synonym for ‘witness.’ The First Amendment, however, does not prohibit name-calling. The First Amendment protects “vehement, caustic, and sometimes unpleasantly sharp attacks” as well as language that is “vituperative, abusive, and inexact.” Watts, 394 U.S. at 708, 89 S.Ct. at 1401-02. Further, the First Amendment protects such speech even when it is designed to embarrass or otherwise coerce another into action. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982). Thus, “threats of vilification or social ostracism” are" }, { "docid": "7811189", "title": "", "text": "1988. The individuals who received the telephone calls at the Jewish National Fund properly perceived the calls as threatening. Michael Aschenbrand noted that he felt the calls were serious threats because he had received bomb threats previously and was aware of the fact that many of the forest fires that were fought in Israel were set through arson. Melanie Baker felt threatened because the caller’s statements such as “death to all Jews,” the repetitive nature of the calls, the obscenities and the death threats to various officials scared her. Jaime Negroni stated that he considered the telephone calls threatening in light of the facts that he worked for the Jewish National Fund, the extent of antiSemitism in the world today and the presence of world terrorism and the tensions in the Middle East. On February 12, 1988, the Fund received a mailing in one of its postage paid “business reply envelopes” that had been sent to the attention of Melanie Baker and was postmarked “Bloomington, Indiana, February 9, 1988.” This envelope contained a poster-like paper that stated at its top “Wanted for crimes against humanity and Palestinians for fifty years.” Under this heading the paper contained pictures that had been taken from materials that the Jewish National Fund published. The pictures were of Israeli officials including Yitzhak Shamir, Israeli Prime Minister, Shi-mon Peres, Israeli Foreign Minister, Chaim Herzog, Israeli President, Teddy Kollek, Mayor of Jerusalem and Shlomo Lahat, Mayor of Tel Aviv. Also included on the paper were pictures of Thomas Pickering, former United States Ambassador to Israel as well as of individuals who were the President, Executive Vice-President and Director of Communications for the Jewish National Fund. Swastikas and epithets were drawn over the pictures together with “mustaches” and other disfigurements. Next to the names Yitzhak Shamir and Shimon Peres were, respectively, the words “Execute now!” and “His blood need.” Next to the pictures of both Teddy Kollek and Shlomo Lahat were the statements “Must be killed.” On the left side of the picture was a map of Israel on which was written “Long live Palestine,” and a small" }, { "docid": "7811191", "title": "", "text": "disfigured picture of an individual appearing to be Senator Edward Kennedy with an arrow pointing to an accompanying statement “Long live Sarhan Sarhan.” (sic). Around the same time the Jewish National Fund received the envelope containing the “wanted” poster, it received another envelope postmarked “Bloomington, Indiana, February 9, 1988.” This envelope was addressed to “Zionist and Outlawed Fund,” and was given directly to Jewish National Fund Security Director, Michael Aschenbrand, after it was received in the Fund’s mail room. The envelope contained a copy of the Jewish National Fund Mission’s Calendar. The material on the calendar was crossed out, and swastikas were inserted. Also written on these calendars were typewritten statements with anti-Semitic content, as well as obscene, vicious and indecent language similar in content to the statements made in the phone calls previously received at the Jewish National Fund headquarters. Some of the statements included were “Death” to the “occupiers of beloved Palestine,” to “Congress,” to “Ronald Reagan,” “Shamir,” and “to the Fucking JNF.” Also in a manner reminiscent of the phone calls, were statements noting “Long live”: “the beloved Iranians,” “the beloved PLO,” and “his holiness Khomeinee, the only leader of the free world.” Reacting to the receipt of these documents, the Jewish National Fund implemented several proper investigative measures. Initially, the mailings received from Bloomington, Indiana were turned over to the New York Police Department on February 17, 1988. Secondly, since the mailings contained materials taken from Jewish National Fund information packets, Security Chief Michael Aschenbrand instructed Jaime Negroni of the JNF’s Communications Department to ascertain if the JNF had mailed materials to individuals in Bloomington, Indiana. Negroni looked through the records and discovered a request for an information packet from a “David Stein” of Bloomington, Indiana. On February 17, 1988, Negroni made two telephone calls to the number that had been listed on the David Stein information request. In the first telephone call, Negro-ni heard an individual answer the telephone with the words “Financial Services of America.” Based upon his previous exposure to the series of threatening telephone calls the Jewish National Fund office had received" }, { "docid": "7811203", "title": "", "text": "must demonstrate that the defendant made a statement ‘in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].’ ” Hoffman, 806 F.2d at 707 (quoting Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969)). As the Eighth Circuit noted in Martin v. United States, 691 F.2d 1235, 1240 (8th Cir.1982), a case that construed 18 U.S.C. § 876, the statute involved in our case: “The question of whether the language constitutes a threat is an issue of fact for the jury. If a reasonable recipient, familiar with the context of the communication, would interpret it as a threat, the issue should go to the jury.” (Citations omitted). In demonstrating a “true threat” “the government is not required to establish that the defendant actually intended to carry out the threat.” Hoffman, 806 F.2d at 707. In addition, “corroborating evidence that the defendant had the ability to carry out the threat is not a requirement to establish a ‘true threat’_” Id. at 708. Khorrami’s argument is that the “wanted” poster he sent to the Jewish National Fund that contained the words “Execute now” next to a picture of Yitzhak Shamir and “His blood need” next to a picture of Shimon Peres, together with disfigured pictures of other Israeli officials, American officials and officers and employees of the Jewish National Fund, was merely “political hyperbole” and could not have been interpreted by a reasonable jury as containing “true threats.” In Hoffman we emphasized the importance of the context of a statement in determining whether it is a true threat or merely political hyperbole. 806 F.2d at 707. We examined whether the statement was made “ ‘in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm" }, { "docid": "15975785", "title": "", "text": "Cir.2003) (internal citations, quotations, and alterations omitted). The Eleventh Circuit’s objective approach accords with that taken by the majority of the United States Courts of Appeals. See, e.g., United States v. Hartbarger, 148 F.3d 777, 782-83 (7th Cir.1998); United States v. Kosma, 951 F.2d 549, 556-57 (3d Cir.1991). A number of factors are relevant to determine whether speech is a threat pro-seribable under the First Amendment. First, the court must consider the language itself. See, e.g., Watts, 394 U.S. at 708, 89 S.Ct. at 1402 (considering the conditional nature of the threat in the petitioner’s speech). Second, the court “must look at the context in which the communication was made to determine if [it] would cause a reasonable person to construe it as a serious intention to inflict bodily harm.” Alaboud, 347 F.3d at 1297. Third, testimony by the recipient of the communication is relevant to determining whether it is a threat or an act of intimidation. Id. at 1298. a. The Website Itself The language of Carmichael’s website does not make out a threat. There is no explicit threat on the site, and neither the request for information nor the list of Carmichael’s attorneys is threatening or intimidating. The statement that “Mr. Carmichael maintains his innocence and wants the public to know all the facts as well as all the participants in this ease” is similarly unmenacing. Furthermore, the site actually disclaims any intent to threaten; the site includes the following statement at the bottom of the page: “This web site, or any posters, and advertisements concerning the Carmichael Case, is definitely not an attempt to intimidate or harass any informants or agents, but is simply an attempt to seek information.” Indeed, these elements make the site appear to be just what Carmichael maintains it is: another way of gathering information to prepare his defense. It is instructive to compare this case to another case involving a ‘wanted poster.’ In United States v. Khorrami, 895 F.2d 1186, 1189 (7th Cir.1990), the court affirmed the defendant’s conviction for violating 18 U.S.C.A. § 876, which prohibits the mailing of threatening communications." }, { "docid": "15975802", "title": "", "text": "that “[t]hese circumstances, coupled with the similarity to the well-known events of the Oklahoma City bombing, were reasonably interpreted by clinic staff and police officers as a threat to injury.” Id. Thus, the court held that a reasonable person would interpret the Ryder trucks in Hart as a threat, not because of anything about the trucks themselves, but because historical events gave them a threatening meaning. The present case contains an analogue to the Ryder trucks in Hart: the ‘wanted poster’ format. Such posters, of course, call to mind the “Wanted: Dead or Alive” posters of the old American west, and the ‘wanted poster’ format suggests that the individual pictured must be apprehended or punished and that some kind of reward awaits the person who carries out .the apprehension or punishment. The ‘wanted poster’s’ threatening meaning is muted on Carmichael’s website by the words “Information on these Informants and Agents,” but the dominant image is still the word “Wanted” in large, red font at the top of the page. Thus, just like Hart, Carmichael has chosen a form of expression with a historically threatening connotation. The ‘wanted poster’ format is not enough like the Ryder trucks, though, to find that Carmichael’s site is a threat. None of the other circumstances cited in Hart, or something comparable to them, is present here. Most importantly, while Hart could offer no legitimate reason to park the Ryder trucks where he did, Carmichael has offered a legitimate use for his site, to solicit evidence regarding his case. Further, Carmichael’s site explicitly explains its legitimate purpose and disclaims any intent to threaten or harass; no such explanation or disclaimer was present in Hart. The government’s strongest argument based on context may not be that the Carmichael site is a direct threat that he will inflict harm on the ‘informants’ and ‘agents,’ but that the website is- meant to encourage others to inflict harm on them. Agent Borland of the DEA suggested this interpretation when he testified that the website looked to him like a solicitation for others to inflict harm on the witnesses and agents." }, { "docid": "7811210", "title": "", "text": "the pattern of anti-Semitic telephone calls made by a person with the same voice inflections and accent the Jewish National Fund had been receiving during the particular time frame it received the charged threatening telephone calls and letters. Telephone toll records established that telephone calls had been made from Khorrami’s residence on each of these dates and helped provide “sufficient evidence” to support the jury’s findings that Khorrami had made these telephone calls. In addition, each of these three telephone calls were made by a person with the same voice pattern making the same type of anti-Semitic statements, thereby helping to establish both the identity of Khorrami as the person placing the charged January 15 telephone call as well as the intent of the caller. Furthermore, Jaime Negroni, a JNF employee, called Khorrami’s telephone number in February 1988 and testified that the voice of the person answering this call “was the same voice that had been calling” the JNF in the previously recorded threatening calls. In light of the clearly relevant nature of Khor-rami’s statements, the well-thought-out limitations placed on the playing of the tapes to the jury, as well as the requirement that we “view the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing the prejudicial effect,” Brown, 688 F.2d at 1117, we conclude that the trial court properly exercised its discretion in receiving the tape recordings of the January 12, January 13 and February 20 telephone calls Khorra-mi allegedly made to the Jewish National Fund. The tape of the telephone call of March 4,1988, was also relevant to Khorra-mi’s identity and intent for the same reasons as was the telephone call of February 20, 1988. As was the case with the February 20 tape, the receipt of the March 4 tape did not unfairly prejudice Khorrami as only the pertinent segment of the tape containing the same type of profane and threatening statements as in the charged letters and telephone calls was played for the jury, and the tape was sufficiently close in time to Khorrami’s charged crimes to establish relevance" }, { "docid": "7811194", "title": "", "text": "and five calls on January 15, 1988. Other evidence was received that also linked Khorrami to the letters sent to the Jewish National Fund that were postmarked in Bloomington, Indiana, on February 9, 1988. Initially, James E. Winand, a United States Secret Service Qualified Documents Examiner, testified that his analysis of the handwriting in both of the letters the Jewish National Fund received, led him to the conclusion that it was “highly probable” that both exhibits were written by Khorrami. Winand’s analysis of the typing found on the altered Jewish National Fund mission calendars sent to the Fund, led him to the conclusion that the typed matter had come from Khorrami’s word processor. In addition, fingerprint analysis conducted by United States Secret Service Fingerprint Specialist Bobby Ratliff confirmed that Khorrami’s fingerprints were found on the altered Jewish National Fund mission calendar that had been sent to the Fund. Finally, pictures seized at Khorrami’s residence at the time of his arrest contained alterations quite similar to those found in the “wanted” poster the Jewish National Fund had received. At trial Khorrami denied that he had made the telephone calls, claiming that another individual must have entered his residence without his knowledge or consent to make these calls. Furthermore, Khorrami stated that he had examined the Mission Calendar on which his fingerprints appeared, but had not done anything more with this material as it had been addressed to another individual. He denied that he had mailed an altered copy of this calendar. Following a jury trial, Khorrami was convicted of two counts of placing anonymous, annoying, threatening, abusive and harassing phone calls to persons at the Jewish National Fund in violation of 47 U.S.C. § 223(a)(1)(B) and one count of mailing a communication threatening to kill individuals in violation of 18 U.S.C. § 876. The court sentenced Khorrami to concurrent sentences of three years’ imprisonment for mailing threatening communications and concurrent six months’ imprisonment for each count of making obscene or indecent telephone calls. The court suspended all of the sentences of imprisonment and substituted sentences of probation for the same length" }, { "docid": "7811192", "title": "", "text": "statements noting “Long live”: “the beloved Iranians,” “the beloved PLO,” and “his holiness Khomeinee, the only leader of the free world.” Reacting to the receipt of these documents, the Jewish National Fund implemented several proper investigative measures. Initially, the mailings received from Bloomington, Indiana were turned over to the New York Police Department on February 17, 1988. Secondly, since the mailings contained materials taken from Jewish National Fund information packets, Security Chief Michael Aschenbrand instructed Jaime Negroni of the JNF’s Communications Department to ascertain if the JNF had mailed materials to individuals in Bloomington, Indiana. Negroni looked through the records and discovered a request for an information packet from a “David Stein” of Bloomington, Indiana. On February 17, 1988, Negroni made two telephone calls to the number that had been listed on the David Stein information request. In the first telephone call, Negro-ni heard an individual answer the telephone with the words “Financial Services of America.” Based upon his previous exposure to the series of threatening telephone calls the Jewish National Fund office had received and upon his training in the armed services in listening for sounds in the context of submarine and sonar devices, Neg-roni immediately recognized the voice of the individual who answered the telephone as that of the same person who had made the series of threatening telephone calls to the Jewish National Fund. Negroni asked if he could speak to David Stein, whereup on the party with whom he was speaking hung up the telephone. When Negroni called the same number two minutes later, he heard a recording that stated that he was speaking with Financial Services of America. Telephone records revealed that the Bloomington, Indiana, telephone number that Negroni called on February 17, 1988, was subscribed in the name of Farhad Khorrami. Telephone records received in evidence reflected that there had been frequent calls directed from this number to the Jewish National Fund toll-free telephone number. These included 14 calls on January 8, 1988, one call on January 9, 1988, one call on January 10, 1988, 16 calls from January 11 to January 14, 1988," }, { "docid": "7811195", "title": "", "text": "had received. At trial Khorrami denied that he had made the telephone calls, claiming that another individual must have entered his residence without his knowledge or consent to make these calls. Furthermore, Khorrami stated that he had examined the Mission Calendar on which his fingerprints appeared, but had not done anything more with this material as it had been addressed to another individual. He denied that he had mailed an altered copy of this calendar. Following a jury trial, Khorrami was convicted of two counts of placing anonymous, annoying, threatening, abusive and harassing phone calls to persons at the Jewish National Fund in violation of 47 U.S.C. § 223(a)(1)(B) and one count of mailing a communication threatening to kill individuals in violation of 18 U.S.C. § 876. The court sentenced Khorrami to concurrent sentences of three years’ imprisonment for mailing threatening communications and concurrent six months’ imprisonment for each count of making obscene or indecent telephone calls. The court suspended all of the sentences of imprisonment and substituted sentences of probation for the same length of time. Terms of the probation were that Khorrami reside at the Volunteers of America in Indianapolis for a period of 15 months, make an effort to obtain employment to repay the cost of his stay at the Volunteers of America, and seek and participate in weekly mental health counseling. II Khorrami alleges that the evidence was insufficient to support his conviction for mailing a threatening communication in violation of 18 U.S.C. § 876. “In evaluating [Khorrami’s] sufficiency of the evidence challenge, we note that [he] bears a heavy burden. Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). “The test is whether after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745" }, { "docid": "7811201", "title": "", "text": "that it was “virtually certain” that his handwriting was found on the allegedly threatening “wanted poster” letter. Moreover, the second letter postmarked Bloomington, Indiana, that was sent on the same day as the “wanted poster” letter, contained type generated from Khorrami’s word processor and displayed Khorrami’s fingerprints. In addition, both of the letters utilized materials that had been sent from the Jewish National Fund, and a call to the telephone number of an individual who had requested Jewish National Fund materials turned out to be a call to Khorrami’s telephone. Because Khorrami’s authorship of these letters is essentially undisputed, as in United States v. Hoffman, 806 F.2d 703, 712 (7th Cir.1986), “the only question presented is whether the government produced evidence sufficient to support the jury’s verdict that [Khorrami’s] letter constituted a ‘true threat.’ ” The necessity to resolve the question of whether Khorrami’s letter constituted a “true threat” stems from the protections our Constitution accords free speech. In Hoffman, a case involving the construction of a similar statute that prohibited threats upon the President (18 U.S.C. § 871(a)), we stated that: “In Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), the Supreme Court cautioned that because a statute ‘makes criminal a form of pure speech, [it] must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.’ Id. at 707, 89 S.Ct. at 1401. The Court construed the statute ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ Id. at 708, 89 S.Ct. at 1401. To protect these First Amendment values, the Court held that ‘the statute requires the government to prove a true “threat.” ’ Id. The Court concluded that ‘political hyperbole’ does not constitute a ‘true threat.’ Id.” Hoffman, 806 F.2d at 706. “Thus, in order for the government to establish a ‘true threat’ it" }, { "docid": "7811206", "title": "", "text": "poster would interpret this poster as a serious threat to inflict bodily harm upon another rather than as mere “political hyperbole.” Since there was more than sufficient evidence to support the jury’s conclusion that Khorrami’s “wanted” poster constituted a “true threat,” Khorrami’s conviction must be upheld. Ill Khorrami, arguing for reversal of his convictions, alleges that the district court improperly admitted tapes of harassing telephone calls Khorrami allegedly made to the Jewish National Fund that were not a part of his indictment. The tapes of these conversations were conditionally admitted for the purposes of establishing the content of the threatening telephone messages relevant in demonstrating that Khorrami’s telephone calls and written communications contained “true threats,” Khorrami’s identity, as well as his intent. The district court allowed the jury to hear segments of the taped conversations conditioned upon the government later establishing that the calls came from Khorrami. In the event this identification was not established, the district court stated that the tapes would be subject to being stricken from the record. The judge when requested at trial admitted four of five of the tapes to which Khorrami objected, but never received the fifth tape. Khorrami alleged that the admission of the four tapes in evidence, as well as the playing of the fifth tape to the jury not formally admitted in evidence, violated Rules 403 and 404 of the Federal Rules of Evidence. He contended that the tapes were not relevant because the statements did not take place on the January 15 date of the charged threatening phone call, that they were not admitted for purposes recognized under Rule 404(b), that Khorra-mi was insufficiently identified as the caller and that the unfair prejudicial impact of these calls outweighed their probative value. The trial court’s admission of this evidence under Rules 404(b) and 403 is governed by the four-part test outlined in United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984): “Our decisions indicate that, under the dictates of Rule 404(b) and 403, admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed" }, { "docid": "7811190", "title": "", "text": "that stated at its top “Wanted for crimes against humanity and Palestinians for fifty years.” Under this heading the paper contained pictures that had been taken from materials that the Jewish National Fund published. The pictures were of Israeli officials including Yitzhak Shamir, Israeli Prime Minister, Shi-mon Peres, Israeli Foreign Minister, Chaim Herzog, Israeli President, Teddy Kollek, Mayor of Jerusalem and Shlomo Lahat, Mayor of Tel Aviv. Also included on the paper were pictures of Thomas Pickering, former United States Ambassador to Israel as well as of individuals who were the President, Executive Vice-President and Director of Communications for the Jewish National Fund. Swastikas and epithets were drawn over the pictures together with “mustaches” and other disfigurements. Next to the names Yitzhak Shamir and Shimon Peres were, respectively, the words “Execute now!” and “His blood need.” Next to the pictures of both Teddy Kollek and Shlomo Lahat were the statements “Must be killed.” On the left side of the picture was a map of Israel on which was written “Long live Palestine,” and a small disfigured picture of an individual appearing to be Senator Edward Kennedy with an arrow pointing to an accompanying statement “Long live Sarhan Sarhan.” (sic). Around the same time the Jewish National Fund received the envelope containing the “wanted” poster, it received another envelope postmarked “Bloomington, Indiana, February 9, 1988.” This envelope was addressed to “Zionist and Outlawed Fund,” and was given directly to Jewish National Fund Security Director, Michael Aschenbrand, after it was received in the Fund’s mail room. The envelope contained a copy of the Jewish National Fund Mission’s Calendar. The material on the calendar was crossed out, and swastikas were inserted. Also written on these calendars were typewritten statements with anti-Semitic content, as well as obscene, vicious and indecent language similar in content to the statements made in the phone calls previously received at the Jewish National Fund headquarters. Some of the statements included were “Death” to the “occupiers of beloved Palestine,” to “Congress,” to “Ronald Reagan,” “Shamir,” and “to the Fucking JNF.” Also in a manner reminiscent of the phone calls, were" }, { "docid": "7811205", "title": "", "text": "upon or to take the life of [another individual].”’ Hoffman, 806 F.2d at 707 (quoting Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969)). Khorrami sent the “wanted poster” to the Jewish National Fund following a six-month campaign of profane, vulgar and vicious telephone calls to the Fund’s toll-free number. He sent the poster at the same time that he also sent another threatening letter to the Fund. Khorrami drafted all of his threatening correspondence from Jewish National Fund materials, demonstrating to the Fund employees that they were dealing with an individual who had previous contact with the Fund, and he included threats against Fund officers on the same poster that contained threats to Shimon Peres and Yitzhak Shamir. Later, Jaime Negroni, a Fund employee, reasoned that it was likely that the letters and the harassing telephone calls were coming from the same individual. In the context of Khorrami’s personal vendetta campaign of telephonic and postal harassment waged against the Jewish National Fund, a reasonable jury could conclude that the recipients of Khor-rami’s “wanted” poster would interpret this poster as a serious threat to inflict bodily harm upon another rather than as mere “political hyperbole.” Since there was more than sufficient evidence to support the jury’s conclusion that Khorrami’s “wanted” poster constituted a “true threat,” Khorrami’s conviction must be upheld. Ill Khorrami, arguing for reversal of his convictions, alleges that the district court improperly admitted tapes of harassing telephone calls Khorrami allegedly made to the Jewish National Fund that were not a part of his indictment. The tapes of these conversations were conditionally admitted for the purposes of establishing the content of the threatening telephone messages relevant in demonstrating that Khorrami’s telephone calls and written communications contained “true threats,” Khorrami’s identity, as well as his intent. The district court allowed the jury to hear segments of the taped conversations conditioned upon the government later establishing that the calls came from Khorrami. In the event this identification was not established, the district court stated that the tapes would be subject to being stricken from the record. The judge when requested" }, { "docid": "15975787", "title": "", "text": "Khorrami mailed to the Jewish National Fund, a non-profit organization that raises money for public projects in Israel, a “poster-like paper that state[d] at its top ‘Wanted for crimes against humanity and Palestinians for fifty years.’ ” 895 F.2d at 1189. The poster featured photographs of then-current Israeli political figures including Yitzhak Shamir and Shimon Peres along with the Israeli President and the mayors of Jerusalem and Tel Aviv, and it also included photographs of the president, executive vice-president, and director of communications of the Jewish National Fund. Id. The photographs were disfigured with swastikas and epithets, and the statements “His blood need,” “Must be killed,” and “Execute now!” were written next to some of the photographs. Id. In addition to mailing the ‘wanted poster,’ Khorrami repeatedly called the Jewish National Fund over a six-month period and left obscene and threatening telephone messages, and he sent another threatening letter to the fund. Id. at 1188-90. Applying the same test as the Eleventh Circuit for threats, the Khorrami court held that, in light of the defendant’s other actions, “there was more than sufficient evidence to support the jury’s conclusion that [the defendant’s] ‘wanted poster’ constituted a ‘true threat.’ ” Id. at 1193. Carmichael’s website is not nearly as threatening as the ‘wanted poster’ in Khorrami. The www.carmicahaelcase.com site contains no references to killing, execution, or blood; the photographs on the site are not disfigured, and no epithets appear on the site; nor is there anything on the website otherwise comparable to such references and epithets. Moreover, there is no evidence that Carmichael has called the individuals featured on his site, nor is there evidence that he has sent them threatening letters. It is true that the term ‘informant,’ by which the www.carmichaelcase.com site refers to four government witnesses in this case, generally carries a negative connotation. The first sentence of a recent law review article nicely summarizes the word’s connotation: “To mobsters, he is a ‘rat’; to drug-dealers, a ‘snitch.’ To school children, he is a ‘tattletale’; to corporate executives, a ‘whistle-blower.’ To cops, he is an ‘informant’; to prosecutors, a" }, { "docid": "7811200", "title": "", "text": "is left to the sound discretion of the trier of fact.” ’ United States v. Perry, 747 F.2d 1165, 1170 (7th Cir.1984) (quoting United States v. Roman, 728 F.2d 846, 856 (7th Cir.1984)). Finally, ‘the credibility of witnesses is peculiarly within the province of the [trier of fact] and our review of credibility is prohibited absent extraordinary circumstances.’ United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985).” Vega, 860 F.2d at 794. We have recognized “that there are two essential elements to prove a violation of 18 U.S.C. § 876, viz., (1) that the defendant wrote a letter addressed to a certain person containing a threat to injure the person of the addressee or of another, and (2) that the defendant knowingly caused the letter to be forwarded by United States mail.” United States v. Reynolds, 532 F.2d 1150, 1155 (7th Cir.1976). On appeal Khorrami does not contest the fact that he authored the allegedly threatening letter. Indeed, it would be most difficult for Khor-rami to take a contrary position as handwriting analysis demonstrated that it was “virtually certain” that his handwriting was found on the allegedly threatening “wanted poster” letter. Moreover, the second letter postmarked Bloomington, Indiana, that was sent on the same day as the “wanted poster” letter, contained type generated from Khorrami’s word processor and displayed Khorrami’s fingerprints. In addition, both of the letters utilized materials that had been sent from the Jewish National Fund, and a call to the telephone number of an individual who had requested Jewish National Fund materials turned out to be a call to Khorrami’s telephone. Because Khorrami’s authorship of these letters is essentially undisputed, as in United States v. Hoffman, 806 F.2d 703, 712 (7th Cir.1986), “the only question presented is whether the government produced evidence sufficient to support the jury’s verdict that [Khorrami’s] letter constituted a ‘true threat.’ ” The necessity to resolve the question of whether Khorrami’s letter constituted a “true threat” stems from the protections our Constitution accords free speech. In Hoffman, a case involving the construction of a similar statute that prohibited threats upon the President" }, { "docid": "7811186", "title": "", "text": "COFFEY, Circuit Judge. Defendant-appellant, Mohammed Farhad Khorrami, appeals from convictions for mailing threatening communications, in violation of 18 U.S.C. §§ 876 and 3237(a) and of making annoying, threatening or harassing telephone calls in violation of 47 U.S.C. § 228(a)(1)(B). Each of the defendant’s convictions stem from communications he directed to the headquarters of the Jewish National Fund in New York City, New York. We affirm. I In early 1988, a series of harassing and threatening phone calls and letters were received at the New York headquarters of the Jewish National Fund. The Jewish National Fund (JNF or Fund) is a non-profit organization that raises funds for planting trees, building roads and erecting recreational facilities in the nation of Israel. The Jewish National Fund is also responsible for all open land fire fighting in the nation of Israel. The Jewish National Fund maintains a toll-free number at its New York, New York headquarters where interested individuals may direct donations and information requests. In the summer of 1987 the Jewish National Fund’s toll-free number began to receive harassing and threatening phone calls. In the beginning, these calls were received on an average of once a week, but as of November 1987 these phone calls were received nearly every other day. The phone calls consisted of repetitive anti-Semitic comments and profanity. As a reaction to this series of telephone calls and to permit the Jewish National Fund to record information requests and donations during hours its switchboard was closed, the Jewish National Fund purchased a telephone answering machine in November 1987. On January 11, 1988, Melanie Baker, the individual who supervises and coordinates the Jewish National Fund’s toll-free telephone number and Jaime Negroni, an employee who works in Baker’s telemarketing, communications and information department, listened to a telephone answering machine tape on which they heard an irate individual making threatening and profane statements concerning the Jewish National Fund, Israelis, and Jews. Upon hearing the tape, Negroni took the tape to Michael Aschenbrand, the Jewish National Fund’s Director of Administrative, Personnel and Security Services. Aschenbrand turned the tape over to the New York Police" }, { "docid": "15975786", "title": "", "text": "There is no explicit threat on the site, and neither the request for information nor the list of Carmichael’s attorneys is threatening or intimidating. The statement that “Mr. Carmichael maintains his innocence and wants the public to know all the facts as well as all the participants in this ease” is similarly unmenacing. Furthermore, the site actually disclaims any intent to threaten; the site includes the following statement at the bottom of the page: “This web site, or any posters, and advertisements concerning the Carmichael Case, is definitely not an attempt to intimidate or harass any informants or agents, but is simply an attempt to seek information.” Indeed, these elements make the site appear to be just what Carmichael maintains it is: another way of gathering information to prepare his defense. It is instructive to compare this case to another case involving a ‘wanted poster.’ In United States v. Khorrami, 895 F.2d 1186, 1189 (7th Cir.1990), the court affirmed the defendant’s conviction for violating 18 U.S.C.A. § 876, which prohibits the mailing of threatening communications. Khorrami mailed to the Jewish National Fund, a non-profit organization that raises money for public projects in Israel, a “poster-like paper that state[d] at its top ‘Wanted for crimes against humanity and Palestinians for fifty years.’ ” 895 F.2d at 1189. The poster featured photographs of then-current Israeli political figures including Yitzhak Shamir and Shimon Peres along with the Israeli President and the mayors of Jerusalem and Tel Aviv, and it also included photographs of the president, executive vice-president, and director of communications of the Jewish National Fund. Id. The photographs were disfigured with swastikas and epithets, and the statements “His blood need,” “Must be killed,” and “Execute now!” were written next to some of the photographs. Id. In addition to mailing the ‘wanted poster,’ Khorrami repeatedly called the Jewish National Fund over a six-month period and left obscene and threatening telephone messages, and he sent another threatening letter to the fund. Id. at 1188-90. Applying the same test as the Eleventh Circuit for threats, the Khorrami court held that, in light of the defendant’s" }, { "docid": "7811193", "title": "", "text": "and upon his training in the armed services in listening for sounds in the context of submarine and sonar devices, Neg-roni immediately recognized the voice of the individual who answered the telephone as that of the same person who had made the series of threatening telephone calls to the Jewish National Fund. Negroni asked if he could speak to David Stein, whereup on the party with whom he was speaking hung up the telephone. When Negroni called the same number two minutes later, he heard a recording that stated that he was speaking with Financial Services of America. Telephone records revealed that the Bloomington, Indiana, telephone number that Negroni called on February 17, 1988, was subscribed in the name of Farhad Khorrami. Telephone records received in evidence reflected that there had been frequent calls directed from this number to the Jewish National Fund toll-free telephone number. These included 14 calls on January 8, 1988, one call on January 9, 1988, one call on January 10, 1988, 16 calls from January 11 to January 14, 1988, and five calls on January 15, 1988. Other evidence was received that also linked Khorrami to the letters sent to the Jewish National Fund that were postmarked in Bloomington, Indiana, on February 9, 1988. Initially, James E. Winand, a United States Secret Service Qualified Documents Examiner, testified that his analysis of the handwriting in both of the letters the Jewish National Fund received, led him to the conclusion that it was “highly probable” that both exhibits were written by Khorrami. Winand’s analysis of the typing found on the altered Jewish National Fund mission calendars sent to the Fund, led him to the conclusion that the typed matter had come from Khorrami’s word processor. In addition, fingerprint analysis conducted by United States Secret Service Fingerprint Specialist Bobby Ratliff confirmed that Khorrami’s fingerprints were found on the altered Jewish National Fund mission calendar that had been sent to the Fund. Finally, pictures seized at Khorrami’s residence at the time of his arrest contained alterations quite similar to those found in the “wanted” poster the Jewish National Fund" } ]

[ { "docid": "14364591", "title": "", "text": "Plaintiffs have failed to cite, and we are unaware of any instance in which Florida tort law or the tort law of any other jurisdiction has been applied to actions arising out of injuries suffered in the midst of civil war occurring on foreign soil. Nor are we able to discern judicially discoverable and manageable criteria in the Florida law of tort against which to fully measure Defendants’ conduct. The allegations contained in the Amended Complaint go far beyond the simple claim that Linder was tortiously killed through acts of the Defendants. Rather, Plaintiffs have levelled broad-based charges that the participation in acts of warfare and terror against Nicaragua constitute unlawful action. See Amended Complaint at Para. 32. Throughout the Amended Complaint, the Plaintiffs allege that the actions taken against Linder were part of an overall design to wage attacks on foreign development workers at development sites like hydroelectric plants as a means of terrorizing the population of Nicaragua. See Amended Complaint at Paras. 34, 36, 57. In order to measure Defendants’ conduct, we are necessarily required to adjudge the validity of the contras’ policies in Nicaragua. In our view, the court is without discoverable and manageable standards to adjudicate the nature and methods by which the contras chose to wage war in Nicaragua. The realm of issues determinable by a court or jury with reference to Florida tort law simply does not include issues such as these arising out of conflict between belligerents in the midst of a foreign civil war. Among other things, we would be required to discern between military, quasi-military, industrial, economic and other strategic targets, and rule upon the legitimacy of targeting such sites as hydroelectric plants on Nicaraguan soil in the course of civil war. We would be called upon to inquire into whether and under what circumstances Defendants were justified in targeting such sites with knowledge that civilians, or paramilitary or military personnel would be present at the sites. Indeed, we would be called upon to discern between military or paramilitary personnel guarding a strategic dam and engineers building or maintaining such a" } ]

[ { "docid": "14364568", "title": "", "text": "ORDER OF DISMISSAL MARCUS, District Judge. THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss, first filed on August 8, 1988. The Court has twice taken extensive argument concerning this difficult motion. This action now arises from a five-count Amended Complaint charging Defendants with (1) wrongful death, (2) battery, (3) intentional infliction of emotional distress, (4) violation of Article 3 of the First Geneva Convention, the Second Geneva Convention and the protocols thereto, customary international law, and other treaties and (5) civil conspiracy, in connection with the death of Benjamin Linder in the midst of civil war in Nicaragua. Because we find that Plaintiffs’ claims are non-justiciable due to operation of the political question doctrine and that neither customary international law nor the Geneva Conventions provide a private right of action, Defendants’ Motion to Dismiss must be and is GRANTED. I. BACKGROUND At the heart of Plaintiffs’ Amended Complaint is the claim that the Defendants plotted to kill Benjamin Linder as part of a conspiracy to undermine the Nicaraguan government through attacks on projects related to health care, education, agriculture and economic development. The Plaintiffs have alleged that these attacks were carried out with knowledge that foreign development workers would be present at the project sites. Amended Complaint at Para. 36-37. The actions surrounding the death of Linder are said to have occurred “pursuant to a policy, pattern, and practice of widespread torture, murder and inhuman and degrading treatment directed against civilians and development projects and perpetrated by employees and agents of [the Defendants].” Amended Complaint at Para. 58. The Amended Complaint arises out of the death of Mr. Linder on April 28, 1987, in the El Cua region of Nicaragua. A proper understanding of this action requires a thorough review of the events surrounding the death of Linder as alleged in the Amended Complaint. Linder was an American mechanical engineer who moved to Nicaragua in August 1983. Amended Complaint at Para. 40. In December 1986, Linder moved to the El Cua region in order to aid the Nicaraguan government in the building of hydroelectric plants. Amended Complaint" }, { "docid": "15993518", "title": "", "text": "clear that both Congress and the Executive have “expressly endorsed the concept of suing terrorist organizations in federal court,” and therefore this Court need not delve into an in-depth political question analysis here. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). Moreover, through the express language of the ATA and the application of common law tort principles, the Court has clear and manageable standards by which to properly adjudicate Plaintiffs’ claims. See Ungar v. The Palestinian Authority, 402 F.3d 274, 281 (1st Cir.2005). The courts which have addressed this precise issue have squarely held that ATA claims brought against the PLO and the PA do not constitute non-justiciable politi cal questions. See, e.g., Biton v. Palestinian Interim Self-Government Authority, 310 F.Supp.2d 172, 184-85 (D.D.C.2004); Ungar, 402 F.3d at 282; Klinghoffer, 937 F.2d at 49-50; Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424, 448-49 (S.D.N.Y.2004). Defendants fail to discuss, no less distinguish, any of these cases. Defendants argue that “the high level of violence and antipathy over the months since September 2000 have created a situation akin to the conflict which supported the ruling of non justiciability in Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992)”. Defs.’ Mot. at 7. In that case, the Eleventh Circuit affirmed the district court’s dismissal of the defendant organizations based on the political question doctrine, mainly because of the lack of judicially manageable criteria for adjudication of the claims. The court noted that to decide the issues before it, the district court would have had “to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war,” and to “inquire into the relationship between United States policy and the actions of the contrafs].” Linder, 963 F.2d at 335 (internal citations to district court opinion omitted). Defendants’ reliance on Linder is unfounded because, as noted above, the ATA provides clear judicially discoverable and manageable standards for adjudication of this case. Biton, 310 F.Supp.2d at 184. Whatever the merits of Defendants’ contentions about the political situation between the Israelis and the Palestinians, it" }, { "docid": "21820", "title": "", "text": "moved to Nicaragua to help bring electricity to the country’s rural, undeveloped areas. Assisting in the building of dams and hydroelectric plants in the El Cua-San Jose de Bocay region, Linder began work on the construction of a weir, a small dam to measure water flow. On April 28, 1987, shortly after Linder and six other men arrived at the half-built dam, a Nicaraguan Democratic Force (“FDN”) patrol, which had been waiting for Linder and his co-workers since early morning, attacked them with grenades and machine guns. Initially immobilized by non-fatal wounds to his legs and arms and stabbed thirty to forty times in his face, Linder died when a contra soldier shot him in the temple from less than two feet. Seeking compensatory and punitive damages, Linder’s parents and siblings filed a wrongful death action in the U.S. District Court for the Southern District of Florida against three contra organizations operating out of southern Florida — the United Nicaraguan Opposition and the Nicaraguan Resistance, in addition to the FDN- — and four of their leaders, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indalecio Rodriguez Alaniz. Concluding that the Linders’ action presented nonjusticiable political questions, the dis- triet court dismissed the complaint. Linder v. Calero Portocarrero, 747 F.Supp. 1452, 1457 (S.D.Fla.1990). Although affirming the dismissal with respect to the three organizational defendants, the Eleventh Circuit directed the case to proceed against the four individuals as a tort action under Florida law. Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992). In their complaint, the Linders plead three alternative theories of liability. The first seeks to prove defendants’ direct involvement in the torture and murder of Linder: Defendant Bermudez, and upon information and belief, defendants Calero, Sanchez, and Rodriguez, as members of the civilian-military command, ordered, authorized, approved, directed and ratified the attack on the Cua-Bocay development project, and ordered, authorized, approved, directed, and ratified the murder of Benjamin Linder and two others, on April 28, 1987. Third Am. Compl. ¶ 39(a). Alleging that defendants participated in a conspiracy to murder, the second and third theories rely, in" }, { "docid": "23516815", "title": "", "text": "1987, he was allegedly tortured and killed by members of the Nicaraguan Democratic Force. Mr. Linder’s family filed suit against the individuals allegedly involved and three anti-government military organizations. The District Court dismissed the case based in part on the political question doctrine. The Eleventh Circuit reversed as to the individual defendants but affirmed the dismissal of the defendant organizations on the grounds of non-justiciability. Id. at 337. The District Court in Linder gave three reasons for applying the political question doctrine: First, and perhaps most important, this court can discern no judicially manageable criteria by which to adjudicate the merits of the claim. Second, the real prospect that the parties would not be able to fully gather the data necessary to adjudicate this claim on the merits also points to a finding of non-justiciability. Finally, adjudication on the merits could readily lead to real interference with the conduct of foreign policy by the political branches of government. Linder v. Portocarrero, 747 F.Supp. 1452, 1457 (S.D.Fla.1990). However, these reasons do not apply with the same force, if at all, to the case at hand. See Ungar v. Palestinian Auth., 228 F.Supp.2d 40, 45 (D.R.I.2002) (distinguishing Linder from a fatal car attack in Israel allegedly committed by the terrorist group HAMAS). Adjudication of the complaint in Linder would have required the Florida District Court “ ‘to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war ’, and to inquire into ‘the relationship between United States policy and the actions of the contrast.]’ ” Linder, 963 F.2d at 335 (quoting the District Court) (emphasis added). Conversely, there are judicially discoverable and manageable standards for deciding the Bitons’ and Ms. Asrafs claims, namely the ATA. The ATA created a federal cause of action for acts of “international terrorism,” a precisely-defined term. See 18 U.S.C. § 2331(1). In conjunction with that statute, the “common law of tort provides clear and well-settled rules on which the district court can easily rely[.]” Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). This" }, { "docid": "14364625", "title": "", "text": "the execution and torture of wounded and defenseless persons and took no steps to stop the practices of their subordinates. Amended Complaint, at Paras. 56, 59. The Plaintiffs specifically claim that the Defendants “authorized, approved, directed and ratified the attack on the Cua-Bocay development project, and authorized, approved, directed, and ratified the attack that killed Benjamin Linder and two others, on April 28, 1987.” Amended Complaint, at Para. 57. The Plaintiffs further represent that the planned attack on Linder was part of a “policy, pattern, and practice of widespread torture targeted at development workers and development projects for the purpose of destroying the projects and terrifying other development workers, foreign and Nicaraguan, from engaging in similar development work.” Amended Complaint, Para. 57-58. The adjudication of the merits of these claims manifestly would require inquiry into the full scope of Defendants’ modus operandi for carrying out warfare in Nicaragua. The Court would be required to make determinations regarding: the identity of those responsible for the creation and execution of contra military strategy; the precise nature and scope of the strategy employed by the contras; the physical location where the contras’ decision-making procedures occurred; and the time during which strategy was formulated. Because of the intimate link between the contras’ activities and the political branches’ policy toward Nicaragua, an inquiry into the parameters of contra policy would surely involve efforts to uncover the nature of the relationship between United States policy and the actions of the contras. It is not difficult to imagine that the political branches could be hampered in their ability to conduct sensitive foreign policy initiatives with foreign groups involved in civil war if the conduct later becomes subject to suits by private citizens challenging the nature of war-making on foreign soil. At all events, the adjudication of this claim would implicate the inherent inability of the judiciary to predict the international consequences flowing from a decision on the merits. See Atlee, 347 F.Supp. at 702; Tel-Oren, 726 F.2d at 774. And an adjudication on the merits surely would raise the “potentiality of embarrassment from multifarious pronouncements by various" }, { "docid": "23516814", "title": "", "text": "held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The defendants cite Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992), in support of their argument that “the high level of violence and antipathy during the months since September 2000 have created a situation” rendering the plaintiffs’ claims non-justiciable. Defs.’ Mot. to Dismiss at 15. In that case, Benjamin Linder, a mechanical engineer and U.S. citizen, went to Nicaragua to construct dams and hydroelectric plants. In April 1987, he was allegedly tortured and killed by members of the Nicaraguan Democratic Force. Mr. Linder’s family filed suit against the individuals allegedly involved and three anti-government military organizations. The District Court dismissed the case based in part on the political question doctrine. The Eleventh Circuit reversed as to the individual defendants but affirmed the dismissal of the defendant organizations on the grounds of non-justiciability. Id. at 337. The District Court in Linder gave three reasons for applying the political question doctrine: First, and perhaps most important, this court can discern no judicially manageable criteria by which to adjudicate the merits of the claim. Second, the real prospect that the parties would not be able to fully gather the data necessary to adjudicate this claim on the merits also points to a finding of non-justiciability. Finally, adjudication on the merits could readily lead to real interference with the conduct of foreign policy by the political branches of government. Linder v. Portocarrero, 747 F.Supp. 1452, 1457 (S.D.Fla.1990). However, these reasons do not apply with the same" }, { "docid": "15993519", "title": "", "text": "created a situation akin to the conflict which supported the ruling of non justiciability in Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992)”. Defs.’ Mot. at 7. In that case, the Eleventh Circuit affirmed the district court’s dismissal of the defendant organizations based on the political question doctrine, mainly because of the lack of judicially manageable criteria for adjudication of the claims. The court noted that to decide the issues before it, the district court would have had “to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war,” and to “inquire into the relationship between United States policy and the actions of the contrafs].” Linder, 963 F.2d at 335 (internal citations to district court opinion omitted). Defendants’ reliance on Linder is unfounded because, as noted above, the ATA provides clear judicially discoverable and manageable standards for adjudication of this case. Biton, 310 F.Supp.2d at 184. Whatever the merits of Defendants’ contentions about the political situation between the Israelis and the Palestinians, it does not necessarily follow that Plaintiffs’ claims constitute a non-justiciable political question. As the Second Circuit noted in Klinghoffer, in which the PLO made nearly the exact same non-justiciability argument, the doctrine “is one of ‘political questions,’ not one of ‘political cases.’ The fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question.” 937 F.2d at 49 (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). As in Klinghoffer, this case “is essentially an ordinary tort suit,” despite its tragic facts. Consequently, Defendants’ Motion with respect to non-justiciability must be denied. B. Palestine Is Not a State and Therefore Is Not Entitled to Sovereign Immunity Defendants next argue that “Palestine is an entity that meets the definition of a state under U.S. and international law,” and therefore is immune from suit under 18 U.S.C. Section 2337(2). Defs.’ Mot. at 14. That section of the ATA provides that “[n]o action shall be maintained,”" }, { "docid": "22295872", "title": "", "text": "interfere with foreign policy. The defendants assert that since the plaintiffs’ cause of action arises out of conduct by belligerents in a foreign war on foreign soil, it cannot be a matter of judicial complaint. They argue that municipal law does not recognize a claim for relief stemming from the conduct of war on foreign soil, and that neither the Geneva Conventions nor customary international law provides a private right of action. They submit that the political question doctrine bars relief because jurisdiction based upon alleged wrongs in foreign wars would require the court to intrude into foreign policy, create insurmountable information-gathering difficulties, and leave the court without judicially manageable standards. Discussion We have little doubt that the broad-based issues alleged in the district court by the plaintiffs only slightly resemble the narrow issue presented to us. We do not agree with the plaintiffs that the district court seriously misread and mischaracterized the complaint to require a broad judicial inquiry into contra policies in Nicaragua. On the contrary, we read the allegations of the complaint as the district court did as being required to discern between military, quasi-military, industrial, economic and other strategic targets, and rule upon the legitimacy of targeting such sites as hydroelectric plants on Nicaraguan soil in the course of a civil war. We would be called upon to inquire into whether, and under what circumstances, defendants were justified in targeting such sites, with knowledge that civilians or paramilitary or military personnel would be present at these sites. Indeed, we would be called upon to discern between military or paramilitary personnel guarding a strategic dam and engineers building or maintaining such a site during time of war. In short, “we would necessarily be required to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war”, and to inquire into “the relationship between United States policy and the actions of the contras”. In brief and oral argument the plaintiffs concede it would be difficult to find discoverable and manageable standards to adjudicate the nature and methods by" }, { "docid": "23516816", "title": "", "text": "force, if at all, to the case at hand. See Ungar v. Palestinian Auth., 228 F.Supp.2d 40, 45 (D.R.I.2002) (distinguishing Linder from a fatal car attack in Israel allegedly committed by the terrorist group HAMAS). Adjudication of the complaint in Linder would have required the Florida District Court “ ‘to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war ’, and to inquire into ‘the relationship between United States policy and the actions of the contrast.]’ ” Linder, 963 F.2d at 335 (quoting the District Court) (emphasis added). Conversely, there are judicially discoverable and manageable standards for deciding the Bitons’ and Ms. Asrafs claims, namely the ATA. The ATA created a federal cause of action for acts of “international terrorism,” a precisely-defined term. See 18 U.S.C. § 2331(1). In conjunction with that statute, the “common law of tort provides clear and well-settled rules on which the district court can easily rely[.]” Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). This lawsuit also does not present separation of powers concerns. But see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 824-26 (D.C.Cir.1984) (Robb, S.C.J., concurring). By enacting the ATA, both the Executive and Legislature have “expressly endorsed the concept of suing terrorist organizations in federal court[.]” Klinghoffer, 937 F.2d at 49; see also Flatow Amendment, 28 U.S.C. § 1605 note (providing a cause of action against an official, employee, or agent of a “state sponsor of terrorism” for personal injury or death “caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act ....”) (quoting 28 U.S.C. § 1605(a)(7)). In the aftermath of September 11, 2001 — and even before that tragedy — President George W. Bush and members of Congress have, on numerous occasions, publicly announced multifaceted policies having the goal of condemning terrorist activities. See, e.g., S.J. Res. 22, 107th Cong. (2001). The Court disagrees with the defendants’ characterization of the amended complaint as an “all-out political attack upon the" }, { "docid": "16429422", "title": "", "text": "issue in this limited interlocutory appeal. . The district court concluded that neither the political question doctrine nor the act-of-state doctrine barred resolution of the suit; that defendants were not immune to suit; that seven of the nine plaintiffs had pleaded facts sufficient to state a claim under the ATS for extrajudicial killings; that plaintiffs had pleaded facts sufficient to state a claim under the ATS for crimes against humanity; and that plaintiffs’ wrongful death claims were timely. The district court concluded that plaintiffs had not stated a claim for violations of the rights to life, liberty, security of persons, freedom of assembly, and association under the ATS. The district court also concluded that plaintiffs’ state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence were time-barred. . Defendants appeal as of right the district court's decision of no immunity. . We accept that the present government of Bolivia has waived any immunity that defendants might otherwise enjoy. For background, see In re Doe, 860 F.2d 40, 44-46 (2d Cir. 1988) (cited in United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)); In re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108, 1110-11 (4th Cir. 1987). This case presents no political question: plaintiffs’ tort claims require us to evaluate the lawfulness of the conduct of specific persons towards plaintiffs' decedents, not to decide the legitimacy of our country's executive branch’s foreign policy decisions. Cf. Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992) (concluding .plaintiffs’ allegations of tort liability did not present a non-justiciable political question where \"the complaint challenge[d] neither the legitimacy of the United Slates foreign policy toward the contras, nor d[id] it require the court to pronounce who was right and who was wrong in the Nicaraguan civil war”). See also Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996). . The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United" }, { "docid": "16275691", "title": "", "text": "concludes that there is no vicarious aiding and abetting liability for natural persons under the TVPA, Dis. Op. at 86, this is inconsistent with the Senate Judiciary Committee report, which states that the statute permits “lawsuits against persons who ordered, abetted, or assisted in ... torture.” S. Rep. No. 102-249, at 8. . In Baker v. Cair, the Court identified six factors to guide a court's determination of whether a complaint presents a non-justiciable question: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudi cial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217, 82 S.Ct. 691. . The district court emphasized the general ambiguity of the State Department's 2002 letter, see Doe I, 393 F.Supp.2d at 22-23, and observed that a few months later it had ordered discovery to commence on the common law claims, id. at 23. This suggests the district court did not view the 2002 letter as presenting a justiciability problem for either the federal statutory or the common law claims. . This court cited Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir.2006), vacated on other grounds, 487 F.3d 1193 (9th Cir.2007) (en banc), where the State Department had filed a letter, stating an ATS suit against non-state actors was, in the words of this court, \"simply a tort suit — which is constitutionally committed to the judiciary.” Doe I, 473 F.3d at 354 (citing Sarei, 456 F.3d at 1079-82). This court also cited Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992), where the Eleventh Circuit concluded that the political question doctrine ought not prevent common law tort claims arising out of the" }, { "docid": "21822", "title": "", "text": "contrast, on circumstantial evidence of the nature, policies, and practices of the contra organizations, as well as defendants’ roles in them. Under the second theory, the Linders seek to prove that defendants were the leaders of the contra organizations; that in those hierarchical organizations, soldiers in the field obeyed orders from their leaders; that the organizations, as a matter of policy established or approved by their leaders, tortured and killed foreign development workers and prisoners of war; and that Linder’s torture and killing resulted directly from those policies. Id. ¶ 39(b). The third theory alleges that defendants led the hierarchical organizations; that defendants knew that the FDN tortured and executed defenseless and wounded individuals; that defendants failed to stop such practices, thus placing their imprimatur on them; and that Linder’s killing resulted from those practices. Id. ¶ 39(c). Of significance to one of the issues before us — the scope of the subpoenas — the district court and the Eleventh Circuit approved the inclusion in the complaint of all three theories. See Order Den. in Part and Granting in Part Defs.’ Mot. to Strike Second Am. Compl. and Granting Pis.’ Mot. for Att’y’s Fees at 5; Linder, 963 F.2d at 336-37. Failing to obtain relevant documents from the two surviving defendants (Calero and Rodriguez), the Linders served third-party subpoenas duces tecum on the FBI, CIA, Defense and State Departments, and two other federal agencies, the National Security Agency and the Immigration and Naturalization Service. Each subpoena requested an extensive list of documents relating to Benjamin Linder, the April 28 attack, other similar attacks in the area, defendants’ role in orchestrating such attacks, and the structure, organization, finances, policies, and practices of the three contra organizations. When the agencies refused to comply, claiming both burden and privilege, the Linders filed separate motions to compel against each agency in the U.S. District Court for the District of Columbia. The district court quashed the NSA subpoena, agreeing with the agency that the Linders’ request was unduly burdensome, Linder v. Calero-Portocarrero, Misc. No. 94-148, 1995 WL 901765 (D.D.C.1995), aff'd sub nom. Linder v. NSA," }, { "docid": "22295869", "title": "", "text": "S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). Errors of law in evaluating the dismissal of the complaint are subject to plenary review by this court. Taffet v. Southern Co., 930 F.2d 847, 851 (11th Cir.1991). District Court’s Reasons for Dismissal The district court concluded first that 28 U.S.C. § 1331 does not confer federal jurisdiction over claims for relief by an individual predicated upon an alleged breach of customary international law. Second, even if this were not so, it would fail because of the non-governmental status of the defendants. Third, the Geneva Conventions are not self-executing. Fourth, even if suit would otherwise lie under 28 U.S.C. § 1332(a)(3), there can be no judicial redress for injuries occurring outside of the United States during conflicts between belligerents. The district court found that: [the amended complaint] is based on the underlying torts of battery and intentional infliction of emotional distress. There are however no applicable standards which would readily permit the fact-finder to thoroughly assess the defendants’ liability in this case. As a federal court sitting in diversity jurisdiction, we would ordinarily apply the tort law of Florida to determine the liability of the defendants. However, the plaintiffs have failed to cite, and we are unaware of any instance in which Florida tort law or the tort law of any other jurisdiction has been applied to actions arising out of injuries suffered in the midst of civil war occurring on foreign soil.... The allegations contained in the amended complaint go far beyond the simple claim that Linder was tortiously killed through acts of the defendants. Rather, the plaintiffs have levelled broadbased charges that the participation in acts of warfare and terror against Nicaragua constitute unlawful action.... The realm of issues determinable by a court or jury with reference to Florida tort law simply does not include issues such as these arising out of conflict between belligerents in the midst of a foreign civil war. Contentions of the Parties The plaintiffs contend that the district court seriously misread and mischaracter-ized the complaint to require an expansive judicial inquiry into the contra policies in" }, { "docid": "23516813", "title": "", "text": "over which this Court has original jurisdiction. All of the plaintiffs’ claims “derive from a common nucleus of operative fact” — i.e., the bus bombing in the Gaza Strip. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The Court chooses to exercise its discretion to hear these related claims in the interests of “economy, convenience, fairness, and comity[.]” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Thus, this portion of the motion to dismiss will be denied. E. Justiciability According to the defendants, the allegations in the amended complaint “amount to an all-out political attack upon the PA, the PLO, President Arafat, and senior Palestinian officials of such wide scope as to be nonjusticiable, raising issues that are not appropriate for or capable of judicial resolution.” Defs.’ Mot. to Dismiss at 15. The Supreme Court in Baker v. Carr established a framework for determining whether a lawsuit implicates a political question: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The defendants cite Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992), in support of their argument that “the high level of violence and antipathy during the months since September 2000 have created a situation” rendering the plaintiffs’ claims non-justiciable. Defs.’ Mot. to Dismiss at 15. In that case, Benjamin Linder, a mechanical engineer and U.S. citizen, went to Nicaragua to construct dams and hydroelectric plants. In April" }, { "docid": "16275692", "title": "", "text": "82 S.Ct. 691. . The district court emphasized the general ambiguity of the State Department's 2002 letter, see Doe I, 393 F.Supp.2d at 22-23, and observed that a few months later it had ordered discovery to commence on the common law claims, id. at 23. This suggests the district court did not view the 2002 letter as presenting a justiciability problem for either the federal statutory or the common law claims. . This court cited Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir.2006), vacated on other grounds, 487 F.3d 1193 (9th Cir.2007) (en banc), where the State Department had filed a letter, stating an ATS suit against non-state actors was, in the words of this court, \"simply a tort suit — which is constitutionally committed to the judiciary.” Doe I, 473 F.3d at 354 (citing Sarei, 456 F.3d at 1079-82). This court also cited Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992), where the Eleventh Circuit concluded that the political question doctrine ought not prevent common law tort claims arising out of the Nicaraguan civil war from going forward, id. at 337, noting that \"[t]he fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question,” id. (quoting Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir.1991)). . The United States’ amicus brief before the Supreme Court stated that district court had \"carefully considered concerns identified by the United States” and “[l]argely on the basis of those concerns” had dismissed the federal claims. 2008 WL 2095734, at *8. Both the district court and this court concluded, however, that the State Department's 2002 letter was ambiguous and the text qualifying the State Department's position applied to all claims. See Doe /, 473 F.3d at 354. Since appellants noted their appeals in 2009, the State Department has not filed a statement of interest in this or the district court. . The district court received expert testimony on the question of the definitiveness or ambiguity of the 2002 statement of interest from Harold Hongju" }, { "docid": "22295871", "title": "", "text": "Nicaragua. While they concede that some allegations of the complaint present theories that could be read broadly, plaintiffs rely on the narrow allegations that the individual defendants operating out of the Southern District of Florida are personally liable for the torture and murder of Linder. The complaint, they say, does not simply allege that agents of the defendants caused the torture and murder of Linder, or that the defendants generally approved particular attacks; rather the defendants themselves ordered Linder’s killing because he was a United States citizen. The plaintiffs argue that the allegations of the defendants’ torture and execution of Linder violated fundamental norms of international law that are cognizable under federal question jurisdiction; that Common Article 3 of the Geneva Convention confers private rights on individuals and that its prohibitions on torture and summary execution can be enforced in United States courts; that jurisdiction under municipal tort law is applicable. They further argue that the political question doctrine is inapplicable to the narrow issue posed by this case because the relief sought does not interfere with foreign policy. The defendants assert that since the plaintiffs’ cause of action arises out of conduct by belligerents in a foreign war on foreign soil, it cannot be a matter of judicial complaint. They argue that municipal law does not recognize a claim for relief stemming from the conduct of war on foreign soil, and that neither the Geneva Conventions nor customary international law provides a private right of action. They submit that the political question doctrine bars relief because jurisdiction based upon alleged wrongs in foreign wars would require the court to intrude into foreign policy, create insurmountable information-gathering difficulties, and leave the court without judicially manageable standards. Discussion We have little doubt that the broad-based issues alleged in the district court by the plaintiffs only slightly resemble the narrow issue presented to us. We do not agree with the plaintiffs that the district court seriously misread and mischaracterized the complaint to require a broad judicial inquiry into contra policies in Nicaragua. On the contrary, we read the allegations of the complaint" }, { "docid": "21821", "title": "", "text": "leaders, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indalecio Rodriguez Alaniz. Concluding that the Linders’ action presented nonjusticiable political questions, the dis- triet court dismissed the complaint. Linder v. Calero Portocarrero, 747 F.Supp. 1452, 1457 (S.D.Fla.1990). Although affirming the dismissal with respect to the three organizational defendants, the Eleventh Circuit directed the case to proceed against the four individuals as a tort action under Florida law. Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992). In their complaint, the Linders plead three alternative theories of liability. The first seeks to prove defendants’ direct involvement in the torture and murder of Linder: Defendant Bermudez, and upon information and belief, defendants Calero, Sanchez, and Rodriguez, as members of the civilian-military command, ordered, authorized, approved, directed and ratified the attack on the Cua-Bocay development project, and ordered, authorized, approved, directed, and ratified the murder of Benjamin Linder and two others, on April 28, 1987. Third Am. Compl. ¶ 39(a). Alleging that defendants participated in a conspiracy to murder, the second and third theories rely, in contrast, on circumstantial evidence of the nature, policies, and practices of the contra organizations, as well as defendants’ roles in them. Under the second theory, the Linders seek to prove that defendants were the leaders of the contra organizations; that in those hierarchical organizations, soldiers in the field obeyed orders from their leaders; that the organizations, as a matter of policy established or approved by their leaders, tortured and killed foreign development workers and prisoners of war; and that Linder’s torture and killing resulted directly from those policies. Id. ¶ 39(b). The third theory alleges that defendants led the hierarchical organizations; that defendants knew that the FDN tortured and executed defenseless and wounded individuals; that defendants failed to stop such practices, thus placing their imprimatur on them; and that Linder’s killing resulted from those practices. Id. ¶ 39(c). Of significance to one of the issues before us — the scope of the subpoenas — the district court and the Eleventh Circuit approved the inclusion in the complaint of all three theories. See Order Den. in" }, { "docid": "22295870", "title": "", "text": "diversity jurisdiction, we would ordinarily apply the tort law of Florida to determine the liability of the defendants. However, the plaintiffs have failed to cite, and we are unaware of any instance in which Florida tort law or the tort law of any other jurisdiction has been applied to actions arising out of injuries suffered in the midst of civil war occurring on foreign soil.... The allegations contained in the amended complaint go far beyond the simple claim that Linder was tortiously killed through acts of the defendants. Rather, the plaintiffs have levelled broadbased charges that the participation in acts of warfare and terror against Nicaragua constitute unlawful action.... The realm of issues determinable by a court or jury with reference to Florida tort law simply does not include issues such as these arising out of conflict between belligerents in the midst of a foreign civil war. Contentions of the Parties The plaintiffs contend that the district court seriously misread and mischaracter-ized the complaint to require an expansive judicial inquiry into the contra policies in Nicaragua. While they concede that some allegations of the complaint present theories that could be read broadly, plaintiffs rely on the narrow allegations that the individual defendants operating out of the Southern District of Florida are personally liable for the torture and murder of Linder. The complaint, they say, does not simply allege that agents of the defendants caused the torture and murder of Linder, or that the defendants generally approved particular attacks; rather the defendants themselves ordered Linder’s killing because he was a United States citizen. The plaintiffs argue that the allegations of the defendants’ torture and execution of Linder violated fundamental norms of international law that are cognizable under federal question jurisdiction; that Common Article 3 of the Geneva Convention confers private rights on individuals and that its prohibitions on torture and summary execution can be enforced in United States courts; that jurisdiction under municipal tort law is applicable. They further argue that the political question doctrine is inapplicable to the narrow issue posed by this case because the relief sought does not" }, { "docid": "15993517", "title": "", "text": "over decades and of such wide scope as to be nonjusticiable, raising issues that are not appropriate for or capable of judicial resolution.” Defs.’ Mot. at 6. Defendants assert that “the judicial process is not equipped to assess the actions of a distant and foreign functioning government and its officials in this way over a period of decades ....” Id. at 6-7. Defendants fail to address the fact that this lawsuit was brought under a statute specifically designed to provide a civil cause of action in federal court for terrorist acts taken against American nationals abroad. The ATA provides: Action and jurisdiction. — Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. 18 U.S.C. § 2333(a). Enactment of the ATA makes it clear that both Congress and the Executive have “expressly endorsed the concept of suing terrorist organizations in federal court,” and therefore this Court need not delve into an in-depth political question analysis here. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). Moreover, through the express language of the ATA and the application of common law tort principles, the Court has clear and manageable standards by which to properly adjudicate Plaintiffs’ claims. See Ungar v. The Palestinian Authority, 402 F.3d 274, 281 (1st Cir.2005). The courts which have addressed this precise issue have squarely held that ATA claims brought against the PLO and the PA do not constitute non-justiciable politi cal questions. See, e.g., Biton v. Palestinian Interim Self-Government Authority, 310 F.Supp.2d 172, 184-85 (D.D.C.2004); Ungar, 402 F.3d at 282; Klinghoffer, 937 F.2d at 49-50; Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424, 448-49 (S.D.N.Y.2004). Defendants fail to discuss, no less distinguish, any of these cases. Defendants argue that “the high level of violence and antipathy over the months since September 2000 have" }, { "docid": "22295873", "title": "", "text": "as the district court did as being required to discern between military, quasi-military, industrial, economic and other strategic targets, and rule upon the legitimacy of targeting such sites as hydroelectric plants on Nicaraguan soil in the course of a civil war. We would be called upon to inquire into whether, and under what circumstances, defendants were justified in targeting such sites, with knowledge that civilians or paramilitary or military personnel would be present at these sites. Indeed, we would be called upon to discern between military or paramilitary personnel guarding a strategic dam and engineers building or maintaining such a site during time of war. In short, “we would necessarily be required to measure and carefully assess the use of the tools of violence and warfare in the midst of a foreign civil war”, and to inquire into “the relationship between United States policy and the actions of the contras”. In brief and oral argument the plaintiffs concede it would be difficult to find discoverable and manageable standards to adjudicate the nature and methods by which the contras chose to wage war in Nicaragua. Also, whether a hydroelectric dam was an appropriate target and if so, was the act which was perpetrated permissible if civilians were present. Further, that if the plaintiffs had to discover information regarding the contras’ relationship to the United States and the nature of the war-making adopted and implemented by the contras, then discovery could present problems. The sweeping allegations of the complaint led the district court into a thicket of non-justiciable claims for relief that overshadowed the narrow issue of Florida tort liability now presented to us. Except for this issue, the district court properly dismissed the complaint. But since we must read the allegations of the complaint to include any theory on which the plaintiffs may recover, Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967), we conclude that the amended complaint alleges a claim under Florida tort liability upon which relief may be granted. A. Tort Liability It is important to point out that the amended complaint alleges that: [t]he order to murder Benjamin" } ]

[ { "docid": "7858456", "title": "", "text": "Dluhos were able to bring his claim in diversity, his claim would still look to the substantive law of admiralty. In admiralty cases, courts have traditionally applied a legal fiction to ships, under which an owner or the owner’s successor retains title to a ship no matter how long it has been abandoned. See, e.g., Columbus-America Discovery Group, 974 F.2d at 461; see also 3A Martin J. Norris, Benedict on Admiralty, § 150, at 11-1 (1997) (“When articles are lost at sea the title of the owner in them remains, even if they are found floating on the surface or after being cast upon the shore. Should a vessel be abandoned without hope of recovery or return, the right of property still remains with the owner.”). The fiction exists to favor the use of salvage law over the law of finds, presumably “ ‘because salvage law’s aims, assumptions, and rules are more consonant with the needs of marine activity and because salvage law encourages less competitive and secretive forms of conduct than finds law.’ ” Columbus-America Discovery Group, 974 F.2d at 460 (quoting Hener v. United States, 525 F.Supp. 350, 356 (S.D.N.Y.1981)). We acknowledge that the application of this fiction has recently been called into question and, in some cases involving long abandoned shipwrecks, discarded. See, e.g., Treasure Salvors, 569 F.2d at 336-37. This case, however, does not provide us with an opportunity to reexamine the blanket application of the nonabandonment fiction. Unlike situations in which courts have proposed discarding the fiction, the New York has neither been expressly and explicitly abandoned by its owners, nor has it rested for centuries under fathoms of open ocean. Therefore even if Mr. Dluhos’s claim were cognizable in diversity, because the New York could not have been abandoned as a matter of law, Mr. Dluhos’s claim under the • law of finds must fail. For that reason as well, his motion to amend was properly denied as futile. CONCLUSION For the foregoing reasons, we affirm the judgment entered in the court below, dismissing Mr. Dluhos’s Second Amended Complaint and denying his motion to" } ]

[ { "docid": "4828243", "title": "", "text": "(N.D.Ill.1990); THE NO. 105, 97 F.2d 425, 426 (5th Cir.1938). “Abandonment is said to be a voluntary act which must be proved by a clear and unmistakable affirmative act to indicate a purpose to repudiate ownership.” THE PORT HUNTER, 6 F.Supp. 1009, 1011 (D.Mass.1934). The proof that need be shown must be “strong ..., such as the owner’s express declaration abandoning title.” T. Schoenbaum, Admiralty and Maritime Law, § 15-7, at 512 (1987).... Id. at 461. Other circuits have held that abandonment may be found by circumstantial evidence. In Deep Sea Research, Inc. v. Brother Jonathan, 89 F.3d 680 (9th Cir.1996), vacated by 523 U.S. 491, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998), the Ninth Circuit adopted the following test for abandonment: Traditionally, maritime law has found abandonment when title to a vessel has been affirmatively renounced, or when circumstances give rise to an inference that the vessel has been abandoned; courts have found abandonment, for instance, when a vessel is “so long lost that time can be presumed to have eroded any realistic claim of original title.” ... [The district court’s] holding that the Brother Jonathan is not abandoned rests on the traditional rule that a wreck is not abandoned unless either 1) title is affirmatively renounced or 2) abandonment can be inferred from the lapse of time or failure to pursue salvage efforts on the part of the owners. Brother Jonathan, 89 F.3d at 688 (emphasis added) (citation omitted). The Sixth Circuit has also adopted the view that an intent to abandon may be inferred by circumstances. See Fairport Int’l Exploration, Inc. v. Shripwrecked Vessel known as The Captain Lawrence, 105 F.3d 1078, 1085 (6th Cir.1997), vacated by 523 U.S. 1091, 118 S.Ct. 1558, 140 L.Ed.2d 790 (1998) (“[T]here is ample authority that abandonment may, for some purposes at least, be inferred from the surrounding circumstances.”). In declining to follow the Fourth Circuit’s express abandonment requirement, the Sixth Circuit stated: “Common sense makes readily apparent that the [ASA] did not contemplate a court’s requiring express abandonment; such explicit action is obviously rare indeed, and application of such a" }, { "docid": "15123616", "title": "", "text": "of admiralty apply one to the exclusion of the other, as appropriate, to resolve claims in property discovered and recovered in navigable waters by those other than the property’s owners or those taking through them. See Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 459-60 (4th Cir.1992). Under the law of finds, a person, who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession, becomes the property’s owner. See Martha’s Vineyard Scuba Headquarters, Inc. v. The Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Hener v. United States, 525 F.Supp. 350, 354-57 (S.D.N.Y.1981) (cited and quoted with approval in Columbus-America Discovery, 974 F.2d at 460). Because the law of finds deprives the true owner of a property right, the courts of admiralty disfavor its application and prefer to apply the law of salvage in its stead. They have reasoned that the law of salvage better serves the needs of maritime commerce by encouraging the saving of property for the benefit of its owner rather than the secretive discovery of property in an effort to deprive the owner of title. See Columbus-America Discovery, 974 F.2d at 464; Hener, 525 F.Supp. at 354 (“salvage law assumes that the property being salved is owned by another, and thus that it has not been abandoned”). Accordingly, the law of finds is most often applied in the context of long-lost shipwrecks. See, e.g., Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir.1978) (applying the law of finds to the recovery of a Spanish vessel which sunk near the Florida Keys in 1622, stating that “disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches the fiction to absurd lengths”); see also 3A Benedict on Admiralty § 158, at 11-17 (7th ed. Supp.1991) (recommending “limit[ing] the doctrine of ‘find’ relative to marine disasters to long-lost wrecks ... or where the owners of maritime properties have" }, { "docid": "19384303", "title": "", "text": "vessel. See Deep Sea Research, 118 S.Ct. at 1473. The Court vacated the judgment in the Brother Jonathan to the extent that the “assumption that the Eleventh Amendment was relevant to the courts’ inquiry” influenced the conclusion that the Brother Jonathan was not abandoned for purposes of the ASA. See ibid. The Court concluded, “In light of our ruling that the Eleventh Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court, the application of the ASA must be reevaluated.” Ibid. The Court left to the Brother /omiAcmdistrict court the question whether the vessel had been abandoned, but the Court clarified “that the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” Ibid. Five days later, the Court granted Fair-port’s petition for writ of certioriari, vacated Fairport II, and remanded the case to this court for reconsideration in light of Deep Sea Research. See Fairport Int’l Exploration, Inc. v. The Shipwrecked Vessel Known as the Captain Lawrence, — U.S.-, 118 S.Ct. 1558, 140 L.Ed.2d 790 (1998). Aided by amicus curiae Columbus-America Discovery Group, a “multidisciplinary team of scientists, engineers, historians, and entrepreneurs devoted to exploring the deep ocean,” this court now revisits the dispute between Fairport and the State of Michigan. III. Determining The Owner of the Captain Lawrence A. The Eleventh Amendment Red Herring Under the ASA, if a State proves that a shipwreck is embedded in the submerged lands of the State and abandoned by its owner, title to the shipwreck vests in the State. See 48 U.S.C. § 2105(a). The. Captain Lawrence is embedded in the submerged lands of Michigan. The district court in Fairport I reasoned that, if Beh-rens had abandoned the shipwreck, Michigan owned the Captain Lawrence, and the Eleventh Amendment prevented the court from refereeing an ASA dispute about ownership. Thus, the district court conducted a preliminary inquiry into “abandonment” to see whether the case implicated the ASA. See Fairport I, 913 F.Supp. at 555 (“If the State bears its burden of showing ... that the Captain Lawrence has been abandoned ... the" }, { "docid": "19384308", "title": "", "text": "evaluation consistent with the requirements of the ASA and maritime law. The Supreme Court remanded the Brother Jonathan case “[i]n light of [the Court’s] ruling that the Eleventh Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court-” Ibid, (emphasis added). Thus, we remand this ease to the district court for complete adjudication of the competing claims to the Captain Lawrence. We write to guide the district court in its consideration of two issues: the means of proving abandonment, and the burden of proof placed upon Michigan. B. Abandonment Under maritime law, those who wish to raise sunken ships are governed by either the law of salvage or the law of finds. The law of salvage applies when the original owner retains an ownership interest in the ship; a salvor receives a salvage award, but not title to the ship. See, e.g., Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981). Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship. See Columbus-America, 974 F.2d at 464; Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1064-65 (1st Cir.1987); Treasure Salvors, 640 F.2d at 567. Whether the owner abandoned the ship thus determines which law applies, and, subsequently, who owns the ship. Intent on protecting the property rights of owners, admiralty courts recognize a presumption against finding abandonment. See, e.g., Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981). The 1987 passage of the ASA altered this approach. The ASA transfers to a State the title to all abandoned shipwrecks embedded in the submerged lands of the State. See 43 U.S.C. § 2105. The ASA expressly rejects the application of the maritime laws of salvage and finds. See 43 U.S.C. § 2106(a) (“The law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). If a diver now discovers a long-lost ship embedded in the submerged" }, { "docid": "4828283", "title": "", "text": "the abandoned property is embedded in the land, it belongs to the owner of the land.” Zych, 19 F.3d at 1141 n. 2 (citing Klein v. Unidentified Wreck & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985)). There has, however, been some disagreement among the courts as to whether application of the law of finds or salvage to a shipwreck is proper. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir.1978) (application of salvage law to shipwreck “stretches a fiction to absurd lengths”); and Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (rejecting maritime law and applying common law of finds to determine ownership of abandoned shipwreck). “Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship.” Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (citing cases). As such, whether the sunk en ship was abandoned determined which law applied, as well as who owns the ship. Fairport, 177 F.3d at 498. Further, “admiralty courts recognize a presumption against finding abandonment” to protect the property rights of owners. Id. The ASA, enacted in 1987, displaces the maritime laws of finds and salvage with regard to any abandoned and embedded shipwreck. 43 U.S.C. § 2106(a) (“the law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). Specifically, under the ASA, The United States asserts title to any abandoned shipwreck that is: (1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State or; (3) on submerged lands of a State and is included or determined eligible for inclusion in the National Register. 43 U.S.C. § 2105(a). Such title of the United States to an abandoned shipwreck is then “transferred to the State in or on whose submerged lands the shipwreck is located.” 43 U.S.C. § 2105(c). Accordingly, provided" }, { "docid": "19384310", "title": "", "text": "lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award (unless state law provides otherwise). Deep Sea Research teaches that — at least where a State does not possess the contested res — a court should not engage in an Eleventh Amendment inquiry. A separate threshold question persists: is the shipwreck abandoned? If the owner abandoned the ship, the ASA automatically, perhaps instantaneously, takes title for the United States and transfers title to a State, resolving the legal issue and ending the court’s inquiry. If the owner did not abandon the ship, the claim to the ship does not implicate the ASA, because the statute applies only to “abandoned” shipwrecks. The ownership of the wreck turns on the meaning of “abandoned.” The Supreme Court remanded the Brother Jonathan with a one-sentence “clarification that the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” Deep Sea Research, 118 S.Ct. at 1473. Until the 1987 passage of the ASA, admiralty courts interpreted “abandoned” primarily when deciding whether to apply the law of salvage or of finds. The ASA departs from maritime law by insulating abandoned shipwrecks from the law of salvage and finds, see 43 U.S.C. § 2106(a), although the Act did not affect the meaning of “abandoned,” which serves as a precondition for the invocation of the ASA’s provisions. In this court’s opinion in Fairport II, we adopted the inferential abandonment test, which allows parties to prove abandonment even if the original owner has not expressly renounced her claim to a vessel. The Fairport II court believed that the inferential abandonment test comported with the weight of maritime authority, see Fairport II, 105 F.3d at 1084 (favorably relating the Brother Jonathan court’s discussion of the test, and contending that “[t]his reasoning accords with the vast majority of decisions that have discussed the issue”) and sound policy reasons, see id. at 1085 (“[Application of [the express abandonment test] would render the ASA a virtual nullity.”). We recognize that the legislative history of the ASA also supports this view. See 1988" }, { "docid": "4828285", "title": "", "text": "a shipwreck is both abandoned, and falls within any one of the three enumerated categories, the state whose submerged lands the shipwreck is embedded in, or lies on, acquires title to the shipwreck by operation of the ASA. Trueman v. The Historic Steamtug New York, 120 F.Supp.2d 228, 233 (N.D.N.Y.2000). Nevertheless, the ASA does not change maritime laws of the United States relating to shipwrecks not subject to the ASA, i.e., not abandoned. In the instant case, the parties do not dispute that the Dunkirk Schooner lies on or is embedded in the submerged lands of New York, a fact supported by both parties’ experts. See, e.g., Cohn Report ¶ 9 (stating the Dunkirk Schooner is “embedded on state-owned bottomlands”); CMURM Report at 5-7. As such, provided the Dunkirk Schooner is abandoned, the ASA applies, and title is vested in New York, and Plaintiff is left with neither title to the Dunkirk Schooner under the law of finds, nor a salvage award under the law of salvage. Fairport, 177 F.3d at 498 (“If a diver now discovers a long-lost ship embedded in the submerged lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award.... ”). If, however, the Dunkirk Schooner is not abandoned, then neither the ASA nor the maritime law of finds applies, and, although title would vest in neither NorthEast nor New York, Plaintiff could be granted a salvage award. As such, the court’s first inquiry is whether the record establishes the Dunkirk Schooner is abandoned. Whether abandonment is the same under maritime law and the ASA has been the subject of much litigation. Under maritime law, “admiralty courts have recognized a presumption against finding a ship abandoned.” Trueman v. The Historic Steamtug New York, 120 F.Supp.2d 228, 233 (N.D.N.Y.2000) (citing Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981)), appeal dismissed, 14 Fed.Appx. 106 (2d Cir.2001). “Because of this presumption, courts in this Circuit have long demanded a high degree of proof in order to prove that an owner has abandoned a vessel.” Id. (citing P.C. Minch, 73 F." }, { "docid": "4828275", "title": "", "text": "action. Great Lakes Exploration, 522 F.3d at 688 (citing Fathom Exploration, LLC v. Unidentified Shipwrecked Vessel or Vessels, 352 F.Supp.2d 1218, 1227 (S.D.Ala.2005) (explaining Eleventh Amendment does not bar a federal court from determining salvage rights so long as the state is not in actual possession of the res); and Zych v. Unidentified, Wrecked, and Abandoned Vessel, Believed to be SB Seabird, 811 F.Supp. 1300, 1315 (N.D.Ill.1992) (holding if a state holds title to a shipwreck, federal courts lack jurisdiction over claims for salvage)), aff'd, 19 F.3d 1136 (7th Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994). This rule is consistent with the Supreme Court’s articulation that when a state does not have actual possession over the res, ie., the shipwrecked vessel, the Eleventh Amendment does not bar a federal court from determining the rights of the parties under either maritime law or the ASA. Deep Sea Research, 523 U.S. at 506-08, 118 S.Ct. 1464 (“Although the Eleventh Amendment bars federal jurisdiction over general title disputes relating to state property interests, it does not necessarily follow that it applies to in rem admiralty actions, or that in such actions, federal courts may not exercise jurisdiction over property that the State does not actually possess.”). “Because the Eleventh Amendment permits federal courts to hear claims under the ASA only if a shipwreck is not already in the actual possession of the state, the definition of ‘possession’ is significant.” Great Lakes Exploration, 522 F.3d at 688 (italics in original). Possession repeatedly “has been defined to mean actual possession, not merely constructive possession.” Id. (citing Deep Sea Research, 523 U.S. at 506-07, 118 S.Ct. 1464; and Fairport, 177 F.3d at 497 n. 3). Whereas constructive possession may be found based on ownership, dominion or control over the premises on which the res is located, or knowledge of the res, combined with the ability to maintain control over or to reduce it to physical possession, without actual personal dominion, actual possession generally requires either physical possession of, or actual personal dominion over the res. Aqua Log, Inc., 594 F.3d" }, { "docid": "19384309", "title": "", "text": "applies the law of finds, vesting title in the finder of the ship. See Columbus-America, 974 F.2d at 464; Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1064-65 (1st Cir.1987); Treasure Salvors, 640 F.2d at 567. Whether the owner abandoned the ship thus determines which law applies, and, subsequently, who owns the ship. Intent on protecting the property rights of owners, admiralty courts recognize a presumption against finding abandonment. See, e.g., Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981). The 1987 passage of the ASA altered this approach. The ASA transfers to a State the title to all abandoned shipwrecks embedded in the submerged lands of the State. See 43 U.S.C. § 2105. The ASA expressly rejects the application of the maritime laws of salvage and finds. See 43 U.S.C. § 2106(a) (“The law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). If a diver now discovers a long-lost ship embedded in the submerged lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award (unless state law provides otherwise). Deep Sea Research teaches that — at least where a State does not possess the contested res — a court should not engage in an Eleventh Amendment inquiry. A separate threshold question persists: is the shipwreck abandoned? If the owner abandoned the ship, the ASA automatically, perhaps instantaneously, takes title for the United States and transfers title to a State, resolving the legal issue and ending the court’s inquiry. If the owner did not abandon the ship, the claim to the ship does not implicate the ASA, because the statute applies only to “abandoned” shipwrecks. The ownership of the wreck turns on the meaning of “abandoned.” The Supreme Court remanded the Brother Jonathan with a one-sentence “clarification that the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” Deep Sea Research, 118 S.Ct. at 1473. Until the 1987 passage of the ASA, admiralty courts interpreted “abandoned” primarily when" }, { "docid": "4828241", "title": "", "text": "L.Ed.2d 956 (2001). If title to the Dunkirk Schooner meets the criteria under the ASA, title vests in the State and no salvage is awarded. See Fairport Int’l Exploration v. The Shipwrecked Vessel known as the Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (explaining that post-enactment of the ASA, “[i]f a diver now discovers a long-lost ship embedded in the submerged lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award.... ”). The Magistrate Judge found that it was undisputed that the Dunkirk Schooner is embedded in the submerged lands of New York. See Report and Recommendation, Dkt. No. 62, at 24. Neither party objects to that finding. Therefore, the second element of the State’s ASA claim is satisfied. As the first element — abandonment—the parties dispute whether the State has met its burden on that issue. The ASA does not define the term “abandoned.” In California v. Deep Sea Research, Inc., 523 U.S. 491, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998), the Supreme Court clarified that “the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law” id. at 508, 118 S.Ct. 1464, but provided no other guidance in determining whether the abandonment requirement has been met. As the Magistrate Judge correctly noted, there is a split of circuit authority as to whether abandonment must be proven by an ex press relinquishment of title, or whether abandonment can be inferred from the surrounding circumstances. For example, in Columbus-America Discovery Group v. Atlantic Mut. Ins., 974 F.2d 450 (4th Cir.1992), the Fourth Circuit adopted the position that an intent to abandon must demonstrate by a “clear and unmistakable affirmative act” (i.e., express abandonment): While abandonment has been simply described as “the act of deserting property without hope of recovery or intention of returning to it,” Nunley v. M/V DAUNTLESS COLOCOTRONIS, 863 F.2d 1190, 1198 (5th Cir.1989), in the lost property at sea context, there is also a strong actus element required to prove the necessary intent. Zych v. The Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213, 214" }, { "docid": "13731158", "title": "", "text": "reduced to its possession. Traditionally, in admiralty, that principle was applied only to objects found in the state of nature, such as marine flora and fauna, that were never previously owned and could thus be reduced to possession by an original “finder.” 3A Benedict on Admiralty § 158, at 11-16. More recently, the doctrine has been applied to long-lost and abandoned shipwrecks, which, having once been owned, are no longer the property of anyone and so revert to the state of nature. See Hener, 525 F.Supp. at 354 (“The common law of finds treats property that is abandoned as returned to the state of nature and thus equivalent to property, such as fish or ocean plants, with no prior owner”). Courts, however, have traditionally presumed that when property is lost at sea, title remains with the true owner, regardless of how much time has passed. See Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir.1992) (“Once an article has been lost at sea, ‘lapse of time and nonuser [sic] are not sufficient, in and of themselves, to constitute an abandonment’ ”) (quoting Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va.1960)). We have noted only two types of maritime cases in which the presumption against abandonment is overcome: first, those in which property owners expressly relinquish title; and second, those where “items are recovered from ancient shipwrecks and no owner appears in court to claim them.” Columbus-America, 974 F.2d at 461; see also Adams v. Unione Mediterránea Di Sicurta, 220 F.3d 659, 671 (5th Cir.2000); Martha’s Vineyard, 833 F.2d at 1065. The presumption that property lost at sea is not abandoned is based on fundamental notions of property that underlie admiralty’s policy favoring the law of salvage over the law of finds. See Dluhos v. Floating & Abandoned Vessel, 162 F.3d 63, 74 (2d Cir.1998). To apply the law of finds other than to the most exceptional of circumstances would promote behavior fundamentally at odds with the principles of mutual aid which underlie salvage law. In an oft-cited opinion," }, { "docid": "19384318", "title": "", "text": "in admiralty law is that a finding of abandonment requires proof by clear and convincing evidence. See, e.g., Columbus-America Discovery Group, 974 F.2d at 467-68 (“[W]hen a previous owner claims long lost property that was involuntarily taken from his control, the law is hesitant to find an abandonment and such must be proved with clear and convincing evidence.”); Falgout Bros., Inc. v. S/V Pangaea, 966 F.Supp. 1143, 1145 (S.D.Ala.1997) (“Abandonment must be proven by clear and convincing evidence _”); Moyer, 836 F.Supp. at 1104-05 (requiring proof of abandonment by clear and convincing evidence); cf. Ries v. Thiesse, 61 F.3d 631, 631 (8th Cir.1995) (requiring creditors to prove by clear and convincing evidence a debtor’s abandonment of a homestead). The Fairport I and Brother Jonathan district courts also recognized that, if no jurisdictional defense applies, maritime law requires proof by clear and convincing evidence. See Brother Jonathan, 883 F.Supp. at 1351 (“Finally, the finding of abandonment must be supported by strong and convincing evidence.”); Fairport I, 913 F.Supp. at 558 (citing Columbus-America, 974 F.2d at 468). The district courts rejected the admiralty standard only because they applied a burden of proof appropriate for assertions of sovereign immunity. The Supreme Court has clarified, however, that where, as here, a State does not possess a shipwreck, the State cannot assert the Eleventh Amendment as a defense to the ASA action. See Deep Sea Research, 118 S.Ct. at 1473. On remand, the district court will decide whether the ASA applies, not whether the Eleventh Amendment bars the action. The court should consider whether Michigan can prove that it owns the shipwreck — that is, whether clear and convincing evidence shows that Behrens abandoned the Captain Lawrence. This burden of proof accords with maritime law and with the protection of private property rights against appropriation by the state. Finally, we observe that the district court must reexamine, and supplement if necessary, the evidence adduced in the earlier proceedings. When the Supreme Court remanded the Brother Jonathan case, it remarked that the district and circuit courts’ conclusion about whether the ship was abandoned “was necessarily influenced" }, { "docid": "19384302", "title": "", "text": "of salvage and of finds), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993). This court adopted the Brother Jonathan’s approach, noting “that there is ample authority that abandonment may, for some purposes at least, be inferred from the surrounding circumstances.” Fairport II, 105 F.3d at 1085. After ruling that a party could prove abandonment by inference, this court held that the district court did not clearly err when it found abandonment by Behrens. See ibid. It affirmed the judgment of the district court. Over a year later, on April 22, 1998, the Supreme Court decided California v. Deep Sea Research, 523 U.S. 491, 118 S.Ct. 1464, 149 L.Ed.2d 626 (1998) (unanimous opinion), the appeal from the Ninth Circuit’s judgment in the Brother Jonathan. Justice O’Connor, writing for the Court, explained that, where a State does not possess the vessel that is the subject of an in rem admiralty action, the Eleventh Amendment does not bar federal jurisdiction over the vessel and, therefore, federal courts may adjudicate competing claims to the shipwrecked vessel. See Deep Sea Research, 118 S.Ct. at 1473. The Court vacated the judgment in the Brother Jonathan to the extent that the “assumption that the Eleventh Amendment was relevant to the courts’ inquiry” influenced the conclusion that the Brother Jonathan was not abandoned for purposes of the ASA. See ibid. The Court concluded, “In light of our ruling that the Eleventh Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court, the application of the ASA must be reevaluated.” Ibid. The Court left to the Brother /omiAcmdistrict court the question whether the vessel had been abandoned, but the Court clarified “that the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” Ibid. Five days later, the Court granted Fair-port’s petition for writ of certioriari, vacated Fairport II, and remanded the case to this court for reconsideration in light of Deep Sea Research. See Fairport Int’l Exploration, Inc. v. The Shipwrecked Vessel Known as the Captain Lawrence, — U.S.-, 118 S.Ct. 1558, 140 L.Ed.2d" }, { "docid": "8076741", "title": "", "text": "secretly, and to hide their recoveries, in order to avoid claims of prior owners or other would-be finders that could entirely deprive them of the property. Hener v. United States, 525 F.Supp. 350, 356 (S.D.N.Y.1981). In sharp contrast to “the harsh, primitive, and inflexible nature of the law of finds” is the law of salvage. Admiralty favors the law of salvage over the law of finds because salvage law’s aims, assumptions, and rules are more consonant with the needs of marine activity and because salvage law encourages less competitive and secretive forms of conduct than finds law. The primary concern of salvage law is the preservation of property on oceans and waterways. Salvage law specifies the circumstances under which a party may be said to have acquired, not title, but the right to take possession of property (e.g., vessels, equipment, and cargo) for the purpose of saving it from destruction, damage, or loss, and to retain it until proper compensation has been paid. Salvage Law assumes that the property being salved is owned by another, and thus that it has not been abandoned. Admiralty courts have adhered to the traditional and realistic premise that property previously owned but lost at sea has been taken involuntarily out of the owner’s possession and control by the forces of nature at work in oceans and waterways; in fact, property may not be “salvaged” under admiralty law unless it is in some form of peril.... Salvage law requires that to be a sal-vor a party must have the intention and the capacity to save the. property involved, but the party need not have the intention to acquire it. Furthermore, although the law of salvage, like the law of finds, requires a salvor to establish possession over property before obtaining the right to exclude others, “possession” means something less in salvage law than in finds law. In the salvage context, only the right to compensation for service, not the right to title, usually results; “possession” is therefore more readily found than under the law of finds_ Moreover, unlike the would-be finder, who is either a" }, { "docid": "4828286", "title": "", "text": "now discovers a long-lost ship embedded in the submerged lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award.... ”). If, however, the Dunkirk Schooner is not abandoned, then neither the ASA nor the maritime law of finds applies, and, although title would vest in neither NorthEast nor New York, Plaintiff could be granted a salvage award. As such, the court’s first inquiry is whether the record establishes the Dunkirk Schooner is abandoned. Whether abandonment is the same under maritime law and the ASA has been the subject of much litigation. Under maritime law, “admiralty courts have recognized a presumption against finding a ship abandoned.” Trueman v. The Historic Steamtug New York, 120 F.Supp.2d 228, 233 (N.D.N.Y.2000) (citing Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981)), appeal dismissed, 14 Fed.Appx. 106 (2d Cir.2001). “Because of this presumption, courts in this Circuit have long demanded a high degree of proof in order to prove that an owner has abandoned a vessel.” Id. (citing P.C. Minch, 73 F. 859, 865 (2d Cir.1896) (stating that for a court to find abandonment of a ship in a claim for salvage, the abandonment must be “absolute, without hope or expectation of recovery.”)). Generally, under the maritime law, abandonment by express acts is required. Fairport, 177 F.3d at 499 (citing cases). In the instant action, nothing in the record establishes that the Dunkirk Schooner was expressly abandoned. Accordingly, the Dunkirk Schooner will only be considered abandoned under an inference of abandonment. Although until the ASA’s passage in 1987, admiralty courts “interpreted ‘abandoned’ primarily when deciding whether to apply the law of salvage or of finds.” Fairport, 177 F.3d at 498-99, “[t]he ASA departed from maritime law by insulating abandoned shipwrecks from the law of salvage and finds, ... the Act did not affect the meaning of ‘abandoned,’ which serves as a precondition for the invocation of the ASA’s provisions.” Id. at 499 (citing 43 U.S.C. § 2106(a)). On the issue of abandonment, the ASA provides only that “States have the responsibility for management of a broad range" }, { "docid": "19384317", "title": "", "text": "Michigan has a colorable claim under the ASA. Instead, it will decide whether Behrens abandoned the shipwreck; if he did, the ASA vests title in Michigan. If he did not, the ASA does not apply. Michigan may prove abandonment by circumstantial evidence, see supra, but Michigan must prove with clear and convincing evidence that Behrens abandoned the ship. The district courts in Fairport I and the Brother Jonathan&pplieá the “preponderance of the evidence” standard not because admiralty law required it, but instead because they reasoned that parties asserting an affirmative jurisdictional defense must establish the defense by a preponderance of the evidence. See Deep Sea Research, Inc. v. Brother Jonathan, 883 F.Supp. 1343, 1349 (N.D.Cal.1995) (“[A] party asserting sovereign immunity will have to at least prove, by a preponderance of the evidence, that the privilege applies.”), aff'd, 102 F.3d 379 (9th Cir.1996), aff'd in part, vacated in part, California v. Deep Sea Research, 523 U.S. 491, 118 S.Ct. 1464 (1998); Fairport I, 913 F.Supp. at 554-54 (adopting the Brother Jonathan court’s reasoning). The uniform rule in admiralty law is that a finding of abandonment requires proof by clear and convincing evidence. See, e.g., Columbus-America Discovery Group, 974 F.2d at 467-68 (“[W]hen a previous owner claims long lost property that was involuntarily taken from his control, the law is hesitant to find an abandonment and such must be proved with clear and convincing evidence.”); Falgout Bros., Inc. v. S/V Pangaea, 966 F.Supp. 1143, 1145 (S.D.Ala.1997) (“Abandonment must be proven by clear and convincing evidence _”); Moyer, 836 F.Supp. at 1104-05 (requiring proof of abandonment by clear and convincing evidence); cf. Ries v. Thiesse, 61 F.3d 631, 631 (8th Cir.1995) (requiring creditors to prove by clear and convincing evidence a debtor’s abandonment of a homestead). The Fairport I and Brother Jonathan district courts also recognized that, if no jurisdictional defense applies, maritime law requires proof by clear and convincing evidence. See Brother Jonathan, 883 F.Supp. at 1351 (“Finally, the finding of abandonment must be supported by strong and convincing evidence.”); Fairport I, 913 F.Supp. at 558 (citing Columbus-America, 974 F.2d at 468)." }, { "docid": "4828242", "title": "", "text": "that “the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law” id. at 508, 118 S.Ct. 1464, but provided no other guidance in determining whether the abandonment requirement has been met. As the Magistrate Judge correctly noted, there is a split of circuit authority as to whether abandonment must be proven by an ex press relinquishment of title, or whether abandonment can be inferred from the surrounding circumstances. For example, in Columbus-America Discovery Group v. Atlantic Mut. Ins., 974 F.2d 450 (4th Cir.1992), the Fourth Circuit adopted the position that an intent to abandon must demonstrate by a “clear and unmistakable affirmative act” (i.e., express abandonment): While abandonment has been simply described as “the act of deserting property without hope of recovery or intention of returning to it,” Nunley v. M/V DAUNTLESS COLOCOTRONIS, 863 F.2d 1190, 1198 (5th Cir.1989), in the lost property at sea context, there is also a strong actus element required to prove the necessary intent. Zych v. The Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213, 214 (N.D.Ill.1990); THE NO. 105, 97 F.2d 425, 426 (5th Cir.1938). “Abandonment is said to be a voluntary act which must be proved by a clear and unmistakable affirmative act to indicate a purpose to repudiate ownership.” THE PORT HUNTER, 6 F.Supp. 1009, 1011 (D.Mass.1934). The proof that need be shown must be “strong ..., such as the owner’s express declaration abandoning title.” T. Schoenbaum, Admiralty and Maritime Law, § 15-7, at 512 (1987).... Id. at 461. Other circuits have held that abandonment may be found by circumstantial evidence. In Deep Sea Research, Inc. v. Brother Jonathan, 89 F.3d 680 (9th Cir.1996), vacated by 523 U.S. 491, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998), the Ninth Circuit adopted the following test for abandonment: Traditionally, maritime law has found abandonment when title to a vessel has been affirmatively renounced, or when circumstances give rise to an inference that the vessel has been abandoned; courts have found abandonment, for instance, when a vessel is “so long lost that time can be presumed to have eroded any realistic claim" }, { "docid": "19384311", "title": "", "text": "deciding whether to apply the law of salvage or of finds. The ASA departs from maritime law by insulating abandoned shipwrecks from the law of salvage and finds, see 43 U.S.C. § 2106(a), although the Act did not affect the meaning of “abandoned,” which serves as a precondition for the invocation of the ASA’s provisions. In this court’s opinion in Fairport II, we adopted the inferential abandonment test, which allows parties to prove abandonment even if the original owner has not expressly renounced her claim to a vessel. The Fairport II court believed that the inferential abandonment test comported with the weight of maritime authority, see Fairport II, 105 F.3d at 1084 (favorably relating the Brother Jonathan court’s discussion of the test, and contending that “[t]his reasoning accords with the vast majority of decisions that have discussed the issue”) and sound policy reasons, see id. at 1085 (“[Application of [the express abandonment test] would render the ASA a virtual nullity.”). We recognize that the legislative history of the ASA also supports this view. See 1988 U.S.C.CA.N. 365, 366 (“[T]he term ‘abandoned’ does not require the original owner to actively disclaim title or ownership. The abandonment or relinquishment of ownership rights may be implied or otherwise inferred -”); id. at 373-74. The appeals court decisions in Fairport II and the Brother Jonathan's:ejected the holding of Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450 (4th Cir.1992), which appears to adopt the express abandonment theory. See id. at 464. A court following the rule of Columbus-America may find abandonment only where it finds “a strong actus element required to prove the necessary intent,” id. at 461; the decision offers as an example “an owner’s express declaration abandoning title.” Ibid, (quoting “T. Schoenbaum, Admiralty and Maritime Law § 15-7, at 512 (1987)”). Cases support this proposition, see, e.g., Hener, 525 F.Supp. at 357 (“[A] finding that title to such property has been lost requires strong proof, such as the owner’s express declaration abandoning title.”); Wilkie v. Two Hundred and Five Boxes of Sugar, 29 F. Cas. 1247, 1247 (D.S.C.1796) (No. 17,662)," }, { "docid": "4828240", "title": "", "text": "after reviewing the submissions and hearing argument from the parties, the Court adopts Magistrate Judge Foschio’s recommendation to grant summary judgment in favor of the State under the Abandoned Shipwrecks Act of 1987, 43 U.S.C. §§ 2101 et seq. (“ASA”). Under the ASA, the United States asserts title to any abandoned shipwreck that is: (1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State; or (3) on submerged lands of a State and is included in or determined eligible for inclusion in the National Register. 43 U.S.C. § 2105(a). Title is then automatically transferred to the State in which the abandoned ship is located. See 43 U.S.C. § 2105(c). Therefore, a state acquires title to a shipwreck under the ASA, when the wreck is: (1) abandoned and (2) falls under one of the three enumerated categories. See Sea Hunt Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 640 (4th Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1079, 148 L.Ed.2d 956 (2001). If title to the Dunkirk Schooner meets the criteria under the ASA, title vests in the State and no salvage is awarded. See Fairport Int’l Exploration v. The Shipwrecked Vessel known as the Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (explaining that post-enactment of the ASA, “[i]f a diver now discovers a long-lost ship embedded in the submerged lands of a State, a finding of abandonment leaves the diver with neither title nor a salvage award.... ”). The Magistrate Judge found that it was undisputed that the Dunkirk Schooner is embedded in the submerged lands of New York. See Report and Recommendation, Dkt. No. 62, at 24. Neither party objects to that finding. Therefore, the second element of the State’s ASA claim is satisfied. As the first element — abandonment—the parties dispute whether the State has met its burden on that issue. The ASA does not define the term “abandoned.” In California v. Deep Sea Research, Inc., 523 U.S. 491, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998), the Supreme Court clarified" }, { "docid": "19384301", "title": "", "text": "Inc. v. The Brother Jonathan, 89 F.3d 680 (9th Cir.1996), amended and superseded on denial of reh’g by 102 F.3d 379 (9th Cir.1996), aff'd in part, vacated in part, California v. Deep Sea Research, 523 U.S. 491, 118 S.Ct. 1464, 149 L.Ed.2d 626 (1998), which treated Eleventh Amendment immunity in ASA proceedings as an affirmative defense, which a State must prove by a preponderance of the evidence. See Fairport II, 105 F.3d at 1084. The court next disposed of Fairport’s claim that the district court clearly erred when it found that Michigan proved by a preponderance of the evidence that Behrens abandoned the Captain Lawrence. The Fairport I court defined “abandonment,” discussing two interpretations: one view, embodied in the Brother Jonathanopiaion, which finds abandonment from express acts or by inference from circumstantial evidence (“inferential abandonment”), and another view, which finds abandonment only where the owner performs a “clear and unmistakable affirmative act” of abandonment (“express abandonment”). Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir.1992) (discussing abandonment under the laws of salvage and of finds), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993). This court adopted the Brother Jonathan’s approach, noting “that there is ample authority that abandonment may, for some purposes at least, be inferred from the surrounding circumstances.” Fairport II, 105 F.3d at 1085. After ruling that a party could prove abandonment by inference, this court held that the district court did not clearly err when it found abandonment by Behrens. See ibid. It affirmed the judgment of the district court. Over a year later, on April 22, 1998, the Supreme Court decided California v. Deep Sea Research, 523 U.S. 491, 118 S.Ct. 1464, 149 L.Ed.2d 626 (1998) (unanimous opinion), the appeal from the Ninth Circuit’s judgment in the Brother Jonathan. Justice O’Connor, writing for the Court, explained that, where a State does not possess the vessel that is the subject of an in rem admiralty action, the Eleventh Amendment does not bar federal jurisdiction over the vessel and, therefore, federal courts may adjudicate competing claims to the shipwrecked" } ]

[ { "docid": "3377531", "title": "", "text": "POSNER, Circuit Judge. This class action on behalf of prisoners confined in the segregation unit at State-ville, the State of Illinois’ maximum-security prison, charges that living conditions in the unit are so substandard as to be a form of cruel and unusual punishment within the meaning of the Eighth Amendment, made applicable to the states by interpretation of the Fourteenth Amendment. (The average number of prisoners confined in segregation at Stateville is 225, but this suit is limited to those confined there for more than ninety consecutive days.) A jury agreed, and awarded nominal damages to the class. The district judge set aside the award of damages on the ground that the defendants (Illinois correctional officials) were immune from liability for damages, but he entered an injunction which requires the defendants to provide “every Stateville segregation inmate who has been confined in segregation for 90 or more consecutive days the opportunity to shower at least three times each week and to exercise outside of his cell at least five hours each week.” However, if the “inmate violates prison rules during his exercise or shower period, he may be denied the exercise or shower rights provided herein for a reasonable period of time pursuant to regulation approved by this court.” 653 F.Supp. 649 (N.D.I11.1987). The defendants’ challenge to the district court’s decision is a narrow one. They do not challenge the jury’s finding that the conditions of segregated confinement at Stateville violated the Eighth Amendment. They do not argue that the district judge should have paid no attention to the finding because ultimately he determined that the defendants were immune from liability for damages and set aside the jury’s verdict. A public official’s immunity in a suit for damages is, normally, immunity from trial, not just from the award of damages. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985); Green v. Carlson, 826 F.2d 647, 651 (7th Cir.1987). If there are factual disputes that cannot be resolved without a trial, then trial there must be, id. at 652; but there was no trial on" } ]

[ { "docid": "11155889", "title": "", "text": "aware that their action may cause injury without being able to divine the most likely victim. Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (“Nor may a prison official escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner.... ”). Here, Delaney alleges that he repeatedly complained to each of the named defendants, filed a grievance, and requested medical attention frequently because he could not exercise outside his cell. In spite of these repeated requests and their knowledge of the potential risk, Delaney claims the defendants did nothing. This inaction satisfies the subjective element of an Eighth Amendment claim. See Jackson, 955 F.2d 21, 22 (inmate’s allegation that prison officers knew of unconstitutional conditions but did nothing was sufficient to show “deliberate indifference”). Having found that Delaney has alleged a constitutional violation, we consider whether the right he asserts was clearly established prior to the spring of 1996. “ ‘[C]learly established’ for purposes of qualified immunity means that ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Wilson v. Layne, 526 U.S. 603, 614-15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 472 (7th Cir.1997). “[T]he inquiry focuses on the objective legal reasonableness of the action, not the state of mind or good faith of the officials in question.” Levenstein v. Salafsky, 164 F.3d 345, 350 (7th Cir.1998) (quoting Erwin v. Daley, 92 F.3d 521, 525 (7th Cir.1996)). While the right must be defined at the appropriate level of specificity, it is not to say “that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful....” Wilson, 526 U.S. at 615, 119 S.Ct. 1692. Rather, it is enough if, based on the pre-existing law, the unlawfulness" }, { "docid": "5739280", "title": "", "text": "the unlawfulness of the conduct. E.g., Wilson v. Layne, 526 U.S. 603, 614-15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Anderson v. Creighton, 483 U.S. 635, 639-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Greenberg v. Kmetko, 922 F.2d 382, 384 (7th Cir.1991). The wrinkle here is that the police learned during the course of the eviction that it had been stayed yet took the weapons anyway. It is arguable, however, that the need for a “cooling off’ period remained and that it would have been imprudent for the police, having begun to collect the weapons preparatory to removing them, to return them to Mr. Perry and then, as it were, turn their backs to him and leave. It is not a conclusive argument, but it is not so off the wall as to excuse the plaintiff, if he wants to argue that no reasonable police officer could rely on such an argument, to present some case authority rejecting it. This he has not done and could not do. It is true that when the constitutional violation is patent, the defense of immunity can be rejected without case authority. Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir.2000); Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir.1995); Eberhardi v. O’Malley, 17 F.3d 1023, 1028 (7th Cir.1994); McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir.1996); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir.1995). The violation might be so patent that no one had ever committed it or sought to fight a suit complaining of it. But that is not this case. The majority opinion misses the point when it says that “the argument that the defendants needed to seize the firearms because evictions are inherently volatile situations is patently unsupported by the facts here.” If, as this passage could be read to concede, evictions are indeed inherently volatile, then prudence would justify the seizure of weapons even if the tenant did not appear to be violent. At least the argument that it would is not so ridiculous that it can be rejected on the basis of “basic" }, { "docid": "11155881", "title": "", "text": "concluded that “exercise is now regarded in many quarters as an indispensable component of preventive medicine.” Anderson v. Romero, 72 F.3d 518, 528 (7th Cir.1995). Given current norms, exercise is no longer considered an optional form of recreation, but is instead a necessary requirement for physical and mental well-being. Although we have recognized the value of exercise and its medicinal effects, we have also consistently held that short-term denials of exercise may be inevitable in the prison context and are not so detrimental as to constitute a constitutional deprivation. Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir.1997) (70-day denial permissible); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir.1988) (28 day denial not deprivation); Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1089 (7th Cir. 1986) (limited recreational activities sufficient, where average prison stay was 10 days or less); Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir.1986) (no deprivation where exercise was denied for 30 days, but then allowed one hour indoor exercise for next 6 months); but see Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.1996) (viable constitutional claim where prisoner denied recreational opportunities for 7 weeks); Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (1989) (reversing summary judgment for prison officials where segregated prisoner denied exercise for 101 days). Here, both in duration and severity, the nature of Delaney’s alleged deprivation was significant and serious, and apparently no alternatives were made available to mitigate the effects of the deprivation. We recently noted that segregation is akin to solitary confinement and that such confinement, uninterrupted by opportunities for out-of-cell exercise “could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual.” Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir.2001). Except for limited calisthenics inside his small cell, the defendants do not argue that Delaney had any other recreational alternatives or access to common areas which may have mitigated the severity of a 6-month denial of yard privileges. See Harris, 839 F.2d at 1236 (no serious deprivation where segregated inmate retained ability to move freely through unit and could improvise" }, { "docid": "3154792", "title": "", "text": "the individual is threatened.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985). However, while “[t]he Eighth Amendment forbids cruel and unusual punishments; it does not require the most intelligent, progressive, humane, or efficacious prison administration.” Anderson v. Romero, 72 F.3d 518, 524 (7th Cir.1995). Additionally, it is important to remember that “[t]he Constitution does not mandate that prisons be comfortable, and a prison ..., which houses persons convicted of serious crimes and who have demonstrated a propensity to violence or escape, cannot be free of discomfort.” Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir.1986) (internal citation omitted). “Conditions, alone or in combination, that do not, however, fall below the contemporary standards of decency, are not unconstitutional, and ‘[t]o the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.’ ” Id. at 600 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Thomas relies on Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988) and Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988), for his assertion that prior to his confinement it was established that the denial of yard time (outdoor exercise) to inmates violated the Eighth Amendment. However, we do not read Harris and Davenport as support for Thomas’s position because they do not specifically hold that an inmate’s Eighth Amendment right is violated if he is denied outdoor exercise. In Harris, we found that summary judgment was appropriate where an inmate was denied yard time for four weeks because he could exercise in his cell for that short period of time. Harris, 839 F.2d at 1236. Likewise, we have also determined on a previous occasion that the Eighth Amendment was not violated when an inmate was confined to his cell twenty four hours a day and denied all outside and indoor exercise privileges for a month, followed by a six month period of confinement in a cell for twenty three hours a day with only one hour of daily indoor exercise. Caldwell, 790 F.2d at 600." }, { "docid": "5334511", "title": "", "text": "Court has instructed us to decide the merits of an appeal even if there is a good immunity defense, since a decision on whether the defendant is entitled to immunity requires freezing the law as of the date he acted. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Whether this rule is absolute may be doubted, for reasons explained in Kalka v. Hawk, 215 F.3d 90, 94-98 (D.C.Cir.2000), and Home v. Coughlin, 191 F.3d 244 (2d Cir.1999), but the reasons are inapplicable here. The issue on the merits is important and should be resolved without further delay. We shall reverse the judgment on the merits, and so moot the issue of immunity. But we cannot forbear to express our surprise at the action of the district court in rejecting the defense of immunity. Since no one could believe that a single 90-day denial of yard privileges would be a cruel and unusual punishment for a serious violation of prison disciplinary rules, the dispositive issue in this case is whether the stacking of such sanctions to the point of depriving a prisoner of an entire year of yard access is cruel and unusual punishment; and as there was no case law when the defendant acted indicating that it is and no tenable argument then or now that stacking so clearly violated the Eighth Amendment that an official in the defendant’s position would have had to know that it did, even without any guidance from case law, it is obvious that the immunity defense should have been sustained. Wilson v. Layne, supra, 526 U.S. at 614-15, 119 S.Ct. 1692; Anderson v. Creighton, 483 U.S. 635, 639-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir.2000); Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir.1995); Eberhardt v. O’Malley, 17 F.3d 1023, 1028 (7th Cir.1994); McBride v. Village of" }, { "docid": "5334513", "title": "", "text": "Michiana, 100 F.3d 457, 460 (6th Cir.1996); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir.1995). On to the merits. In Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988), we upheld, as not clearly erroneous, a judge’s finding that the Eighth Amendment entitled prisoners held in segregation for 90 days or more to five hours of out-of-cell exercise a week. See also Anderson v. Romero, supra, 72 F.3d at 527-28; Jamison-Bey v. Thieret, 867 F.2d 1046 (7th Cir.1989); Allen v. Sakai, 40 F.3d 1001, 1004 (9th Cir.1994). Confinement in segregation is an approximation to solitary confinement, and evidence that this court in Davenport found convincing indicates that long stretches of such confinement can have serious adverse effects on prisoners’ psychological well-being. When unrelieved by opportunities for out-of-cell exercise, such confinement could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual. Tighter limits on the right to exercise have been upheld when the period of restriction was shorter than 90 days. E.g., Thomas v. Ramos, 130 F.3d 754, 762-64 (7th Cir.1997); Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir.1986). The 90-day threshold for considering a denial of out-of-cell exercise opportunities a possible violation of the cruel and unusual punishments clause is of course arbitrary. But issues of immunity to one side, prison authorities are entitled to some guidance from the courts with respect to the meaning of the vague generalities of the Constitution. We think it a reasonable rule that a denial of yard privileges for no more than 90 days at a stretch is not cruel and unusual punishment. Thomas v. Ramos, supra, 130 F.3d at 763-64; cf. Henderson v. Lane, 979 F.2d 466, 469 (7th Cir.1992) (per curiam). At least in general; for the cruel and unusual punishments clause has a relative as well as an absolute component. Certain forms of punishment are considered cruel and unusual without regard to the conduct for which they are imposed. Lousiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947); In re Kemmler, 136 U.S. 436, 446-47," }, { "docid": "3154791", "title": "", "text": "is entitled to qualified immunity. The district court agreed and granted Ramos summary judgment on this claim as well. We conduct a de novo review of this issue. Williams, 71 F.3d at 1248. “Public officials performing discretionary functions are entitled to qualified immunity from civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Gustafson v. Jones, 117 F.3d 1015, 1020-21 (7th Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). This is an objective test, where we must inquire as a practical matter whether a reasonable official would have understood that his actions were unlawful at the time he acted. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Kerr v. Farrey, 95 F.3d 472, 480 (7th Cir.1996). Lack of exercise may rise to a constitutional violation in certain limited circumstances “where movement is denied and muscles are allowed to atrophy [and] the health of the individual is threatened.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985). However, while “[t]he Eighth Amendment forbids cruel and unusual punishments; it does not require the most intelligent, progressive, humane, or efficacious prison administration.” Anderson v. Romero, 72 F.3d 518, 524 (7th Cir.1995). Additionally, it is important to remember that “[t]he Constitution does not mandate that prisons be comfortable, and a prison ..., which houses persons convicted of serious crimes and who have demonstrated a propensity to violence or escape, cannot be free of discomfort.” Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir.1986) (internal citation omitted). “Conditions, alone or in combination, that do not, however, fall below the contemporary standards of decency, are not unconstitutional, and ‘[t]o the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.’ ” Id. at 600 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Thomas relies on Harris v. Fleming, 839 F.2d 1232 (7th" }, { "docid": "5334512", "title": "", "text": "believe that a single 90-day denial of yard privileges would be a cruel and unusual punishment for a serious violation of prison disciplinary rules, the dispositive issue in this case is whether the stacking of such sanctions to the point of depriving a prisoner of an entire year of yard access is cruel and unusual punishment; and as there was no case law when the defendant acted indicating that it is and no tenable argument then or now that stacking so clearly violated the Eighth Amendment that an official in the defendant’s position would have had to know that it did, even without any guidance from case law, it is obvious that the immunity defense should have been sustained. Wilson v. Layne, supra, 526 U.S. at 614-15, 119 S.Ct. 1692; Anderson v. Creighton, 483 U.S. 635, 639-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir.2000); Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir.1995); Eberhardt v. O’Malley, 17 F.3d 1023, 1028 (7th Cir.1994); McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir.1996); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir.1995). On to the merits. In Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988), we upheld, as not clearly erroneous, a judge’s finding that the Eighth Amendment entitled prisoners held in segregation for 90 days or more to five hours of out-of-cell exercise a week. See also Anderson v. Romero, supra, 72 F.3d at 527-28; Jamison-Bey v. Thieret, 867 F.2d 1046 (7th Cir.1989); Allen v. Sakai, 40 F.3d 1001, 1004 (9th Cir.1994). Confinement in segregation is an approximation to solitary confinement, and evidence that this court in Davenport found convincing indicates that long stretches of such confinement can have serious adverse effects on prisoners’ psychological well-being. When unrelieved by opportunities for out-of-cell exercise, such confinement could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual. Tighter limits on the right to exercise have been upheld when the period of restriction was shorter than 90 days. E.g., Thomas v. Ramos, 130 F.3d 754, 762-64" }, { "docid": "19719531", "title": "", "text": "Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Act Up!/Portland, 988 F.2d at 871. “Defendants are entitled to qualified immunity only ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.), cert. denied, — U.S. —, 115 S.Ct. 1695, 131 L.Ed.2d 559 (1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). A public official is not entitled to qualified immunity when the contours of the allegedly violated right were “sufficiently clear that a reasonable official would understand that what he [was] doing violatefd] that right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result. Id. Generally, courts do not look to post-incident cases to determine whether the law was clearly established at the time of the incident. Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989). However, post-incident eases that make a determination regarding the state of the law at the time of the incident are persuasive authority. Id. The Eighth Amendment, which prohibits “cruel and unusual punishments,” imposes a duty on prison officials to provide humane conditions of confinement and to take reasonable measures to guarantee the safety of the inmates. However, every injury suffered by an inmate does not necessarily translate into constitutional liability for prison officials. An Eighth Amendment claim against a prison official must meet two requirements, one subjective and one objective. Farmer v. Brennan, 511 U.S. 825, —, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). Under the subjective requirement of the Eighth Amendment, the" }, { "docid": "5334530", "title": "", "text": "majority — that a failure to afford prisoners an adequate opportunity to exercise can state an Eighth Amendment claim. See Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996). Although Mr. Ramos is correct that cases like Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988), do not set out the constitutional minimum for exercise time, the principles that can be drawn from this circuit’s case law manifest a clear aversion to denying prisoners outside exercise time for extended periods absent an acute need to do so. Davenport and Harris v. Fleming, 839 F.2d 1232 (7th Cir. 1988), strongly suggest that a total restriction is acceptable only when that restriction is short term. See Davenport, 844 F.2d at 1315 (“[W]e are impressed by the number of decisions that hold or suggest that a failure to provide inmates (confined for more than a very short period ... ) with the opportunity for at least five hours a week of exercise outside the cell raises serious constitutional questions.”); Harris, 839 F.2d at 1236 (emphasizing that the restriction was only four weeks). One year is not short term. No doubt, there are situations in which considerations of prison security require such a drastic curtailment of an inmate’s movement. There are indeed, as the panel majority notes, extreme cases in which such measures have been tolerated because of particularly acute security situations. For instance, the Ninth Circuit’s decision in LeMaire stands for the proposition that prison officials may impose complete yard restrictions — even for an extended period of time — when there is an acute security need to do so. 12 F.3d at 1457-58. This circuit as well has acknowledged this exception. See Anderson v. Romero, 72 F.3d 518, 527 (7th Cir.1995) (“To deny a prisoner all opportunity for exercise outside of his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed out of his cell for even a short time.”). 4. The case before us presents a close and difficult one for the application of these principles. Under our existing case law," }, { "docid": "12687886", "title": "", "text": "Defendants are entitled to qualified immunity only “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Although a plaintiff must do more than offer conclusory allegations that the defendant violated a clearly established constitutional right, a public official is not entitled to qualified immunity when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Ill Smith alleges that the defendants violated his right to freedom from cruel and unusual punishment by depriving him of adequate outdoor exercise. Phase I inmates were confined to their cells almost twenty-four hours per day. Although prison officials assert HHSF had a goal of providing Phase I inmates with five hours of access per week to the facility’s outdoor recreation area, they admit that during a six-week period Smith was permitted outside of his cell for outdoor recreation only 45 minutes per week. Before the period in question, several circuits, including this one, had held that deprivation of outdoor exercise could constitute cruel and unusual punishment. Spain v. Procunier, 600 F.2d 189 (9th Cir.1979); Davenport v. DeBobertis, 844 F.2d 1310, 1314-15 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Ruiz v. Estelle, 679 F.2d 1115, 1151-52, vacated in part. as moot, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980). This court recognized in Spain that “some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates.” Spain, 600 F.2d at 199. We emphasized that the plaintiffs were in long-term incarceration where they were in continuous segregation, generally spending twenfy-four hours each day alone in their cells. Id. Under those conditions, deprivation of outdoor exercise constituted cruel and unusual" }, { "docid": "11155890", "title": "", "text": "“ ‘[C]learly established’ for purposes of qualified immunity means that ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Wilson v. Layne, 526 U.S. 603, 614-15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 472 (7th Cir.1997). “[T]he inquiry focuses on the objective legal reasonableness of the action, not the state of mind or good faith of the officials in question.” Levenstein v. Salafsky, 164 F.3d 345, 350 (7th Cir.1998) (quoting Erwin v. Daley, 92 F.3d 521, 525 (7th Cir.1996)). While the right must be defined at the appropriate level of specificity, it is not to say “that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful....” Wilson, 526 U.S. at 615, 119 S.Ct. 1692. Rather, it is enough if, based on the pre-existing law, the unlawfulness of the conduct is apparent. Id. As early as 1986-1-0 years before this lockdown was instituted — we held that a lack of exercise could rise to a constitutional violation. French, 777 F.2d 1250, 1255. Then in 1988 we decided Davenport v. DeRobertis, 844 F.2d 1310, arising from this same segregation unit. We upheld the district court’s injunction requiring Stateville officials to provide segregated inmates “with at least five hours of exercise time per week in order to comply with the Eighth Amendment.” Id. at 1315. We based our decision in part on the impressive number of cases from our sister circuits which held that failure to provide inmates with the opportunity for at least 5 hours of exercise a week outside the cell raised serious constitutional questions. Id. A year before this lockdown was instituted, we again noted that “[t]o deny a prisoner all opportunity for exercise outside his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed out of his cell for even" }, { "docid": "11155892", "title": "", "text": "a short time.” Anderson v. Romero, 72 F.3d 518, 527 (7th Cir.1995). Thus, years before the lock-down at issue here was instituted, the case law clearly established that extended denials of exercise privileges raised constitutional concerns. In light of Davenport and Anderson, it was objectively unreasonable for prison officials to institute a complete 6 month denial of all out-of-cell exercise privileges for segregated prisoners. Finally, we note that it may very well be that the defendant guards have no liability here because they did not establish the lockdown. If they had no discretion, then it would appear that only Warden DeTella is a proper defendant. But we can’t say that now on this record, for the defendants have made no effort to, for instance, outline the chain of command — with responsibilities — assigned to each. On this record, Judge Coar was right to deny the qualified immunity plea of all defendants. While all of these defendants may have other defenses available to them, at this stage of the case the order denying them an early exit on qualified immunity grounds is Affirmed and the case Remanded for further proceedings. . The Stateville Institutional Directive 05.04.000K3 at II.C.9 provides: Inmates who have been housed in segregation less than 90 days will be afforded a minimum of one hour of recreational activity outside their cells per week. Recreational activity will be noted in a log. Five hours of recreational yard time shall be available to all inmates who have served a minimum of 90 days in segregation status in compliance with the Davenport Consent Decree. . To support its argument that the pre 1996 case law on the denial of exercise was unclear, the defendants cite two cases outside this circuit. Strickler v. Waters, 989 F.2d 1375, 1380 (4th Cir.1993) (6 months without outdoor exercise did not constitute a constitutional violation where inmates had access to day room for indoor exercise during waking hours), and Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (limiting out-of-cell exercise to 45 minutes once a week did not violate the Eighth Amendment rights" }, { "docid": "11155891", "title": "", "text": "of the conduct is apparent. Id. As early as 1986-1-0 years before this lockdown was instituted — we held that a lack of exercise could rise to a constitutional violation. French, 777 F.2d 1250, 1255. Then in 1988 we decided Davenport v. DeRobertis, 844 F.2d 1310, arising from this same segregation unit. We upheld the district court’s injunction requiring Stateville officials to provide segregated inmates “with at least five hours of exercise time per week in order to comply with the Eighth Amendment.” Id. at 1315. We based our decision in part on the impressive number of cases from our sister circuits which held that failure to provide inmates with the opportunity for at least 5 hours of exercise a week outside the cell raised serious constitutional questions. Id. A year before this lockdown was instituted, we again noted that “[t]o deny a prisoner all opportunity for exercise outside his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed out of his cell for even a short time.” Anderson v. Romero, 72 F.3d 518, 527 (7th Cir.1995). Thus, years before the lock-down at issue here was instituted, the case law clearly established that extended denials of exercise privileges raised constitutional concerns. In light of Davenport and Anderson, it was objectively unreasonable for prison officials to institute a complete 6 month denial of all out-of-cell exercise privileges for segregated prisoners. Finally, we note that it may very well be that the defendant guards have no liability here because they did not establish the lockdown. If they had no discretion, then it would appear that only Warden DeTella is a proper defendant. But we can’t say that now on this record, for the defendants have made no effort to, for instance, outline the chain of command — with responsibilities — assigned to each. On this record, Judge Coar was right to deny the qualified immunity plea of all defendants. While all of these defendants may have other defenses available to them, at this stage of the case the order denying them an" }, { "docid": "11155882", "title": "", "text": "81 F.3d 1422, 1432 (7th Cir.1996) (viable constitutional claim where prisoner denied recreational opportunities for 7 weeks); Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (1989) (reversing summary judgment for prison officials where segregated prisoner denied exercise for 101 days). Here, both in duration and severity, the nature of Delaney’s alleged deprivation was significant and serious, and apparently no alternatives were made available to mitigate the effects of the deprivation. We recently noted that segregation is akin to solitary confinement and that such confinement, uninterrupted by opportunities for out-of-cell exercise “could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual.” Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir.2001). Except for limited calisthenics inside his small cell, the defendants do not argue that Delaney had any other recreational alternatives or access to common areas which may have mitigated the severity of a 6-month denial of yard privileges. See Harris, 839 F.2d at 1236 (no serious deprivation where segregated inmate retained ability to move freely through unit and could improvise exercise regimen); Shelby, 798 F.2d at 1089 (no violation where prisoners had access to common area exercise bikes). Here, for 6 months, Delaney remained in a cell the size of a phone booth without any meaningful chance to exercise. Nor can the defendants argue that the 6-month denial was brought on by Delaney’s misconduct or propensity to escape. See Pearson, 237 F.3d at 885 (four consecutive, 90-day denials of out-of-cell exercise privileges for serious violations of prison disciplinary rules not cruel and unusual punishment); LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir.1993) (no Eighth Amendment violation where prisoner denied out-of-cell exercise for 5 years because inmate posed constant threat of attack); Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir.1988) (no constitutional violation for 4 month denial of exercise where prisoner posed escape risk). Rather, the parties agree that Delaney was not a fractious inmate and his yard privileges, prior to the lockdown, were never withheld for disciplinary purposes. While there may in certain cases be legitimate penological reasons justifying an extended denial of" }, { "docid": "23661390", "title": "", "text": "were violated by the disclosure of his HIV status to other inmates or to prison staff, or by other actions taken against him on the basis of his HIV status (except insofar as those actions are alleged to have been taken purely to punish him for that status), is barred by the doctrine of official immunity. His claim to damages based on the denial of barber services in violation of the due process clause is also not barred, at least on the record compiled thus far. The complaint also alleges that Anderson was denied yard privileges for “several months” and that this denial, regardless of its motivation, constituted cruel and unusual punishment in violation of the Eighth Amendment. The defendants have not appealed from the denial of immunity from this claim, and so we do not decide whether they are entitled to immunity. We offer a few uncontroversial observations for what limited guidance they may provide the district court. To deny a prisoner all opportunity for exercise outside his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed out of his cell for even a short time. Davenport v. DeRobertis, 844 F.2d 1310, 1314-16 (7th Cir.1988); Campbell v. Cauthron, 623 F.2d 503, 507’ (8th Cir.1980); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir.1979). Prisoners are entitled to reasonable medical care, and exercise is now regarded in many quarters as an indispensable component of preventive medicine. But cases that purport to recognize a right to outdoor exercise, such as Allen v. Sakai, 40 F.3d 1001, 1003-04 (1994), amended, 48 F.3d 1082 (9th Cir.1995), and Spain v. Procunier, supra, involve special circumstances, such as that the prisoners were confined to their cells almost 24 hours a day and were not offered alternative indoor exercise facilities (Allen), or the only alternative offered to the prisoners was exercise in the corridor outside their cells rather than in an indoor exercise facility and the lack of outdoor exercise was merely one of a number of circumstances that in the aggregate constituted the infliction of" }, { "docid": "5739281", "title": "", "text": "constitutional violation is patent, the defense of immunity can be rejected without case authority. Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir.2000); Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir.1995); Eberhardi v. O’Malley, 17 F.3d 1023, 1028 (7th Cir.1994); McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir.1996); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir.1995). The violation might be so patent that no one had ever committed it or sought to fight a suit complaining of it. But that is not this case. The majority opinion misses the point when it says that “the argument that the defendants needed to seize the firearms because evictions are inherently volatile situations is patently unsupported by the facts here.” If, as this passage could be read to concede, evictions are indeed inherently volatile, then prudence would justify the seizure of weapons even if the tenant did not appear to be violent. At least the argument that it would is not so ridiculous that it can be rejected on the basis of “basic Fourth Amendment law.” What the majority calls “basic Fourth Amendment law” is merely the generalities of Fourth Amendment doctrine; and general principles do not decide immunity issues, as the Supreme Court made clear in the Wilson and Anderson decisions that I cited. We ought to use some imagination, and put ourselves in the place of these police officers, not learned in the law, when the eviction was called off. Could it really be said that they should have known that the Constitution prohibited them from temporarily sequestering Perry’s alarming pile of weaponry? I think not. The defendants are entitled to immunity from the plaintiffs claim of damages, and I would therefore affirm the dismissal of both suits." }, { "docid": "10401944", "title": "", "text": "cruel and unusual punishments. Defendant Ramos does not directly challenge the merits of this claim; indeed, in paragraphs 23-30 of his Local Rule 12(N)(3)(b) response he contends that Thomas does not raise an Eighth Amendment claim in his complaint. See supra, note 6. Ramos does, however, contend that he is entitled to qualified immunity from suit. As the defendant has offered no challenge to the merits, we address directly the issue of qualified immunity. Governmental officials performing discretionary functions are shielded from civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus, Ramos is entitled to qualified immunity at this stage if (1) the facts, read in a light most favorable to the plaintiff, do not make out a constitutional violation, or (2) if the rights that were infringed were not “clearly established” at the time the alleged deprivation occurred. See Sherman v. Four County Counseling Center, 987 F.2d 397, 410 (7th Cir.1993); Marshall v. Allen, 984 F.2d 787, 793-94 (7th Cir.1993). The test for determining whether a right was “clearly established” at the time of the alleged violation is “whether the law was clear in relation to the specific facts confronting the public official when he acted.” Marshall, 984 F.2d at 794 (quotations and citations omitted). In the instant case we need not decide whether Ramos’s alleged conduct, if true, actually violated Thomas’s Eighth Amendment rights. Rather, our review the law indicates that the right to outdoor exercise when confined in segregation for seventy days was not clearly established in the summer of 1994. We begin with the unassailable assertion that, absent a serious security risk, the Eighth Amendment would not permit prison officials to deny all exercise to a prisoner. Davenport v. DeRobertis, 844 F.2d 1310, 1314-16 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988). However, as the" }, { "docid": "10401946", "title": "", "text": "Seventh Circuit recently observed in dicta, cases that purport to recognize a right to outdoor exercise, such as Allen v. Sakai, 40 F.3d 1001, 1003-04 (1994), amended, 48 F.3d 1082 (9th Cir.1995), and Spain v. Procunier, [600 F.2d 189, 200 (9th Cir.1979) ], involve special circumstances, such as that the prisoners were confined to their cells almost 24 hours a day and were not offered alternative indoor exercise facilities (Allen), or the only alternative offered to the prisoners was exercise in the corridor outside their cells rather than in an indoor exercise facility and the lack of outdoor exercise was merely one of a number of circumstances that in the aggregate constituted the infliction of cruel and unusual punishment. Anderson v. Romero, 72 F.3d 518, 528 (7th Cir.1995). Thus, it has been held by one court in this district that an eighty-five day lock-down period with no outdoor exercise was constitutionally permissible where inmates were permitted to leave their cells on occasion, use the day room, and move about the prison. Stewart v. McGinnis, 800 F.Supp. 604, 615-16 (N.D.Ill.1992), aff'd, 5 F.3d 1031 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1075, 127 L.Ed.2d 393 (1994). Similarly, Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir.1986), held that confinement for twenty-three hours a day in a cell, with only one hour of indoor exercise, for a period of seven months, was not unconstitutional. Viewing the facts in a light most favorable to Thomas, during his approximately seventy days in segregation he was not permitted to exercise outside in the yard. However, there is no evidence to contradict the defendant’s contention that for approximately 30 days between May 15 and July 23, Thomas’s cell-house was on lock-down and all inmates were prohibited from using the yard facilities. Ramos Aff. ¶ 5. Thomas does not maintain that he was precluded from exercising in his cell, or during his visits to the medical unit, the law library, or the visitation area. While we certainly do not condone the sort of treatment alleged to have occurred in this instance, we also do not" }, { "docid": "10401945", "title": "", "text": "“clearly established” at the time the alleged deprivation occurred. See Sherman v. Four County Counseling Center, 987 F.2d 397, 410 (7th Cir.1993); Marshall v. Allen, 984 F.2d 787, 793-94 (7th Cir.1993). The test for determining whether a right was “clearly established” at the time of the alleged violation is “whether the law was clear in relation to the specific facts confronting the public official when he acted.” Marshall, 984 F.2d at 794 (quotations and citations omitted). In the instant case we need not decide whether Ramos’s alleged conduct, if true, actually violated Thomas’s Eighth Amendment rights. Rather, our review the law indicates that the right to outdoor exercise when confined in segregation for seventy days was not clearly established in the summer of 1994. We begin with the unassailable assertion that, absent a serious security risk, the Eighth Amendment would not permit prison officials to deny all exercise to a prisoner. Davenport v. DeRobertis, 844 F.2d 1310, 1314-16 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988). However, as the Seventh Circuit recently observed in dicta, cases that purport to recognize a right to outdoor exercise, such as Allen v. Sakai, 40 F.3d 1001, 1003-04 (1994), amended, 48 F.3d 1082 (9th Cir.1995), and Spain v. Procunier, [600 F.2d 189, 200 (9th Cir.1979) ], involve special circumstances, such as that the prisoners were confined to their cells almost 24 hours a day and were not offered alternative indoor exercise facilities (Allen), or the only alternative offered to the prisoners was exercise in the corridor outside their cells rather than in an indoor exercise facility and the lack of outdoor exercise was merely one of a number of circumstances that in the aggregate constituted the infliction of cruel and unusual punishment. Anderson v. Romero, 72 F.3d 518, 528 (7th Cir.1995). Thus, it has been held by one court in this district that an eighty-five day lock-down period with no outdoor exercise was constitutionally permissible where inmates were permitted to leave their cells on occasion, use the day room, and move about the prison. Stewart v. McGinnis, 800" } ]

[ { "docid": "22716812", "title": "", "text": "of fact in a criminal case.” 592 F. 2d, at 986. The District Court was directed to hold a new hearing. Ill We first address respondent’s contention that under the statute, the District Court was required to rehear the testimony on which the Magistrate based his findings and recommendations in order to make an independent evaluation of credibility. The relevant statutory provisions authorizing a district court to refer matters to a magistrate and establishing the mode of review of the magistrate’s actions are in 28 U. S. C. § 636 (b)(1). In § 636 (b) (1) (A), Congress provided that a district court judge could designate a magistrate to “hear and determine” any pretrial matter pending before the court, except certain “dispositive” motions. Review by the district court of the magistrate’s determination of these nondispositive motions is on a “clearly erroneous or contrary to law” standard. Certain “dispositive” motions, including a “motion ... to suppress evidence in a criminal case,” are covered by § 636 (b)(1)(B). As to these “dispositive” motions, the district judge may “designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court of [the] motion.” However, the magistrate has no authority to make a final and binding disposition. Within 10 days after the magistrate files his proposed findings and recommendations, any party may file objections. The statute then provides: “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” § 636 (b)(1) (emphasis added). It should be clear that on these dispositive motions, the statute calls for a de novo determination, not a de novo hearing. We find nothing in the legislative history of the statute to" } ]

[ { "docid": "10550137", "title": "", "text": "to rule out the possibility of further necessary surgery. For instance, after ongoing consultation with Dr. Bloom, plaintiff underwent arthroscopic surgery on December 5, 1989. The surgery confirmed that plaintiff suffered both the two fractures and a partial tear of the ACL in plaintiffs left kneé. Furthermore, as early as March 28, 1990, Dr. Bloom’s notes indicated the question of mild medial laxity in the left knee. Thus, by February 1, 1991, when plaintiff filed his administrative claim, the ACL damage and laxity were well documented. The First Circuit has been unwilling “to eviscerate the statute and reduce the insertion of a monetary limit to an empty formality.” Reilly, supra, 863 F.2d at 173. Further, it does not view “such a construction of the law as unduly harsh” because the “goal of the administrative claim requirement is to let the government know what it is likely up against: ... ‘its maximum possible exposure to liability....’” Id. (quoting Martinez v. United States, 780 F.2d 525, 530 (5th Cir.1986)) (emphasis added). As the magistrate judge clearly recognized, “[a]s between [the] prospective defendant and prospective plaintiff, the latter is in by far the better position to determine the worst-case scenario or, if uncertain, to paint the picture as bleakly as reason permits and conscience allows.” Id. (emphasis added). Furthermore, “[i]f a plaintiff misjudges, as to matters known or easily deducible when [his] claim is filed, it seems more equitable for [him] to bear the burden of miscalculation than to impose it on the sovereign.” Id. Herein, the magistrate judge characterized the recommended second surgery at issue, to correct ACL damage, as being “unrelated” to the earlier surgery, which involved the same knee and revealed the ACL tear. The magistrate judge rejected the view that plaintiff’s second surgery was cumulative and confirmatory of earlier diagnoses. Respectfully, the court must disagree. In the face of well-documented ACL damage, one surgery, and subsequent ongoing knee problems, and while mindful of the consequences to plaintiff, the court is unable to say that Myers’ need for additional surgery was unforeseeable. Thus, defendant herein cannot be made to bear" }, { "docid": "23240046", "title": "", "text": "consistent with the requirements of 28 U.S.C. § 1608(e), send a copy of this Judgment and the Findings of Fact and Conclusions of Law issued this date to defendants. IT IS FURTHER ORDERED that the Clerk of this Court shall terminate this case from the dockets of this Court. SO ORDERED. . At other points during the case, plaintiffs sought redress for their losses from various other defendants who have since been dismissed from the case, namely Hezbollah and Osama Bin Laden. . 370 F.3d 41 (D.C.Cir.2004). . A detailed discussion of the facts and circumstances associated with each individual plaintiff will not be addressed in this section, but rather in the respective portions of this opinion relating to the merits of each individual plaintiff's cause of action against the defendants. See infra Conclusions of Law, Part VI. . Plaintiffs have requested pursuant to LCvR 72.3(c) and LCvR 78.1 that the Court hold a hearing on plaintiffs’ objections’ to the magistrate judge's Report and Recommendation. PL Obj. to Report and Recommendation, at 1. Though the district court must consider any objections that have been made regarding the magistrate judge's proposed findings, the language of 28 U.S.C. § 636(b)(1) does not obligate the court to hold a hearing on those objections: See United States v. Raddatz, 447 U.S. 667, 674-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Rather, by \"providing for a 'de novo determination’ rather than de novo hearing [in the statutory language], Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.\" Id. at 676, 100 S.Ct. 2406. Accordingly, to the extent that plaintiffs have objected to Magistrate Judge Robinson's Report and Recommendation to this Court, those objections have been considered and will be addressed within the purview of this written opinion, and not at a hearing before this Court. . Previously, Piper Rudnick LLP. . As to the magistrate judge's finding and recommendation regarding the sufficiency of the evidence plaintiffs submitted, plaintiffs object on the grounds that the evidence presented is sufficient" }, { "docid": "16244640", "title": "", "text": "House Report No. 94-1609, P.L. 94-577, reprinted at [1976] U.S. Code Cong. & Ad.News 6162; see also, United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Because under § 636(b)(1)(A) the magistrate will not be disposing of the entire case, Congress provided that the judge need only determine if the magistrate’s order is “clearly erroneous or contrary to law.” The judge could not have referred Alcoa’s motion, therefore, under § 636(b)(1)(A). The motion was not a “pretrial matter” but set forth all of the relief requested. The magistrate certainly treated it as dispositive. Therefore, the judge had to refer the motion under § 636(b)(1)(B) or § 636(b)(3). Under either, the judge is obligated to review the magistrate’s order by giving the parties a “de novo determination.” A “de novo determination” is not specifically defined in the Act, but the legislative history makes clear that it does not necessarily mean a de novo hearing. House Report No. 94-1609, P.L. 94-577, reprinted at [1976] U.S. Code Cong. & Ad.News 6162. Rather, the judge is to make “his own determination on the basis of [the] . . . record [developed before the magistrate], without being bound to adopt the findings and conclusions of the Magistrate.” Id. The Supreme Court has interpreted this legislative history and has written that in using the phrase “de novo determination” “Congress intended to permit whatever reliance a District Judge, in the exercise of sound judicial discretion, chose to place on a Magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). The district judge in the case at bar applied a “clearly erroneous or contrary to law” standard of review. Although this standard is not necessarily inconsistent with the requirements of a de novo determination, the district judge did not clearly indicate that he afforded the parties a de novo determination. In order to satisfy the Act, he must do so. For this reason, we remand this case to the district court for a de novo determination without reaching the other issues" }, { "docid": "2027904", "title": "", "text": "motion, observing that Goffinan had failed to establish how this “newly discovered” evidence was material to his claim of deliberate indifference, would be credible, or would affect the outcome of the court. Goffman challenges the district court’s denial of his Rule 60(b) motion along with the court’s original judgment in favor of the defendants. II. The main thrust of Goffman’s appeal is directed to the district court’s conclusion that the defendants were not deliberately indifferent to his medical needs. In rendering its judgment the district court adopted the magistrate judge’s findings and conclusions of law. Before addressing Goffman’s claims, we think it would be helpful to set out briefly the various steps of review involved when a matter is referred to a magistrate judge. Section 636(b)(1)(B) of Title 28 authorizes a district court to refer a claim to a magistrate judge to conduct an evidentiary hearing. Following this hearing, the magistrate judge cannot enter a final judgment, but must submit to the district court proposed findings of fact and recommendations for disposition, to which either party may file written objections within 10 days. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). The district court is required to conduct a de novo determination of those portions of the magistrate judge’s report and recommendations to which objections have been filed. But this de novo determination is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge’s findings or credibility determinations. United States v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980); United States v. Severson, 49 F.3d 268, 273 (7th Cir.1995). Rather, the district court has discretion to “accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). If the district court finds a problem, it may take additional evidence, call witnesses, or remand to the magistrate judge for further development. Raddatz, 447 U.S. at 675, 100 S.Ct. at 2412. But if following a review of the record the district court is satisfied with" }, { "docid": "2194919", "title": "", "text": "court order granting a writ of habeas corpus. The State argued that 28 U.S.C. § 636(b)(1)(B), which authorizes federal magistrates to conduct evidentiary hearings in habeas proceedings, violates Article III. The court upheld the delegation, stating: Although magistrate[-conducted] evi-dentiary hearings and subsequent recommended disposition of habeas corpus petitions might be considered “inherently judicial” tasks, under Raddatz delegation of those responsibilities cannot be considered unconstitutional as the district judge retains the power to make the final decision. The district judge could, at the request of the habeas corpus petitioner, or on his own motion, conduct his own evidentiary hearing if he deemed it necessary. In comparison, even if supervising voir dire is considered an “inherently judicial” task, Raddatz requires us to sanction it provided the district judge retains the power to make an effective de novo review. Section 636(b)(3) authorizes judges to “assign” magistrates “additional duties” not inconsistent with the Constitution and laws of the United States. District courts impliedly have the power, in assigning these additional duties, to retain the role of making de novo determinations. Section 636(b)(1), which explicitly allows magistrates to conduct evidentiary hearings and mandates de novo review of actions to which the parties object, in no way detracts from the judge’s inherent and implicit reservation of the power to make a de novo determination when delegating other duties to a magistrate. In this case, although the trial judge had the power to review in advance the proposed voir dire questions or the magistrate’s explanation of the case, he did not choose to do so. The parties, however, did not object to any of the questions or to any actions of the magistrate, despite the magistrate’s instruction to the defendants to raise any matters with the judge that he needed to consider before trial began. The availability of de novo review satisfies constitutional requirements, but it need not be exercised in the absence of a request. The judge’s failure to screen the questions or the magistrate’s explanation of the case before the magistrate conducted voir dire, therefore, does not constitute a constitutional violation. Several appellate decisions involving" }, { "docid": "19022679", "title": "", "text": "Affidavit of Paul B. Zuydhoek, filed April 14,1995; Affidavit of Paul B. Zuydhoek, filed June 1,1995. Defendants also challenge this court’s authority to issue sanctions which provide that the issue of access is resolved in Plaintiffs favor, and argue that the District Court’s referral was limited to decisions regarding pretrial orders, non-dispositive motions, supervision of discovery, and supervision of all procedural matters involving any of the above or preparation of the case. Referral Order, filed July 15, 1992. On July 15, 1992, Judge Skretny referred this copyright infringement action to this court pursuant to 28 U.S.C. § 636(b)(1)(A). Referral Order, filed July 15, 1992. The Referral Order states that the “Magistrate Judge shall not hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) unless further ordered by this Court.” Referral Order, filed July 15, 1992 (emphasis added). As the District Judge has complete jurisdiction over all aspects of the ease, he may amend a referral to a magistrate judge at any time, so long as the referral reserves some level of review by an Article III court as required by 28 U.S.C. § 636. As Judge Skretny subsequently issued, on January 13, 1995, an order indicating that, to the extent the magistrate judge deems the Defendants’ motion for reconsideration dispositive, this court shall submit a report and recommendation for disposition of the Defendants’ motion for reconsideration. Referral Order, filed January 13, 1995. As discussed, this court finds that the sanctions issued are non-dis-positive and therefore within the authority granted the court under Judge Skretny’s original referral order and thus subject to review only on the basis of being clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). However, if upon review of this Decision and Order Judge Skretny finds that the sanctions imposed are beyond this court’s hear and determine authority, he may, in his discretion, treat this Decision and Order as a Report and Recommendation and make a de novo review of the matter. 28 U.S.C. § 636(b)(1). CONCLUSION Based on the foregoing discussion, Defendants’ motion for reconsideration" }, { "docid": "6454481", "title": "", "text": "district court, even when they have not been objected to pursuant to Section 636(b)(1) of Title 28, United States Code. See Thomas v. Arn, 474 U.S. 140, 149-151, 106 S.Ct. 466, 472-73, 84 L.Ed.2d 435 (1985). If no objections have been filed on dispositive non-self-operating magistrate’s rulings, the district court judge can give to the rulings, before entering an order adopting them, as much consideration as seems appropriate. Id. at 150, 106 S.Ct. at 472. When there have been objections filed on dispositive non-self-operating magistrate’s rulings the district court judge is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.A. § 636(b) (West Supp.1988); see also United States v. Raddatz, 447 U.S. 667, 673-684, 100 S.Ct. 2406, 2411-17, 65 L.Ed.2d 424 (1980). After such de novo review, the judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.A. § 636(b) (West Supp.1988). In the present case, Magistrate Taylor has ruled on, and granted, Defendant’s Motion to Suppress. A motion to suppress is a dispositive pretrial matter. Id. § 636(b)(1)(A). Since the Government has objected to the Magistrate’s proposed findings of fact, conclusions of law, and recommendation, this Court must now make a de novo determination on Defendant’s Motion to Suppress. The Government has requested that this Court conduct a hearing on its objections. The Magistrate’s Act does not require a district court to conduct de novo hearings 'on dispositive matters initially ruled upon by a magistrate and objected to by a party. Instead, the statute simply requires a district court judge to make a de novo determination on such matters. United States v. Raddatz, 447 U.S. at 673-676, 100 S.Ct. at 2411-13. Although the Magistrate’s Act authorizes district court judges to “receive further evidence,” 28 U.S.C.A. § 636(b)(1) (West Supp.1988), a de novo determination can be made without conducting any additional evidentiary hearing. United States v. Raddatz, 447 U.S. at 673-676, 100 S.Ct. at 2411-13; Proctor v. State Gov’t, 830 F.2d 514," }, { "docid": "22183462", "title": "", "text": "Rule 11. Unlike an out-of-court admission or confession, a change-of-plea takes place in the judge’s presence; the defendant’s free will can be assessed by the judge first-hand, and does not depend on the credibility of conflicting witnesses, as is usually the case at suppression hearings. See Williams, 23 F.3d at 632 (“[Administrating an allocution is less complex than a number of duties the Magistrates Act specifically authorizes magistrates to perform”). Likewise, the determination of a factual basis for a guilty plea is very similar to a finding of probable cause at a preliminary hearing, a proceeding over which magistrate judges are authorized to preside. 28 U.S.C. § 636(b)(1)(A). In both instances, the issue is the same— whether the facts as presented to the judge provide reason to believe that the defendant committed the crime in question. We are therefore satisfied that Rule 11 plea colloquies “bear some relation to the specified duties” that are specifically au thorized by the Magistrates Act. See Per-etz, 501 U.S. at 930, 111 S.Ct. 2661. Accordingly, where, as here, a defendant consents to proceed before a magistrate judge, there is neither a constitutional nor a statutory impediment to delegating Rule 11 plea colloquies in felony cases to magistrate judges. 3. Review of Magistrate Judge Findings and Recommendations Having concluded that district judges may delegate Rule 11 plea colloquies in felony cases to magistrate judges with defendants’ consent, our final task is to clarify the circumstances under which the district court must conduct a de novo review of the magistrate judge’s findings and recommendations. The answer is found in the Act: A judge of the court shall make a de novo determination of those portions of the [magistrate judge’s] report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(l)(C)(emphasis added). The statute makes it clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, “to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless" }, { "docid": "7388604", "title": "", "text": "Title 28 U.S.C. § 636(b)(1)(B) does authorize magistrates to “conduct hearings, including evidentiary hearings.” Nevertheless, that provision also authorizes the magistrate to “submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of [a summary judgment motion].” See also 28 U.S.C. § 636(b)(1)(A). The magistrate thus had authority to hear a summary judgment motion and was not required to hold an evidentiary hearing. B Garcia next argues that the district court erred by failing to conduct a de novo review of the magistrate’s recommendation, as required by Fed.R.Civ.P. 72(b), when Garcia registered his objection to that recommendation. See Appellant’s Opening Brief at 39. Moreover, according to Garcia, that rule also required the district court to “make clear and adequate findings of fact, expressly addressing Plaintiffs specific timely objections.” Id. (quoting Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir.1993)). Garcia argues that, here, “there is no indication that the district judge actually reviewed the Magistrate’s summary disposition of Plaintiffs claims, even though specific timely exception was made to the recommendations.” Id. We disagree. Pursuant to Fed.R.Civ.P. 72(b), a district court “to whom the case is assigned shall make a de novo determination upon the record ... of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule.” See also 28 U.S.C. § 636(b)(1) (imposing the same requirement on the district court). Garcia argues that because he made specific written objections to the magistrate’s recommendations, the district court had a duty to conduct a de novo review of the record. According to Garcia, the district court’s failure to make clear and adequate findings and conclusions show that it did not conduct de novo review; consequently, we should remand for reconsideration. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (“Where circumstances indicate that the district court has not conducted such review following timely objection to the magistrate’s report, the case must be remanded for compliance with the statute.”). The district court’s order is terse. It contains" }, { "docid": "18856229", "title": "", "text": "the quoted language has been criticized as confusing, United States v. Independent Bulk Transport, Inc., supra, 480 F.Supp. at 479, we conclude that the intent of Congress was to provide for expeditious administrative procedures, with de novo review available in enforcement proceedings before the district court. As the legislative report uses the phrase “de novo hearing” rather than “de novo determination” we must hear the evidence anew rather than relying upon the record of the Coast Guard. See United States v. Raddatz, supra. There is a genuine issue of material fact as to the source of the oil pollution based upon which the penalty was assessed and, accordingly, IT IS ORDERED that the motion of the United States for Partial Summary Judgment be DENIED. . In Raddatz, the district judge had referred to a magistrate, pursuant to 28 U.S.C. § 636(b)(1), a motion to suppress evidence in a criminal case. The magistrate held an evidentiary hearing at which the defendant testified. Based upon the testimony at the hearing, the magistrate found that the defendant had knowingly, intelligently and voluntarily made the inculpatory statements and recommended that the motion to suppress be denied. After considering the transcript of the hearing and over the defendant’s objection, the judge accepted the recommendation and denied the motion to suppress. Section 636(b)(1) requires the judge to make a “de novo determination” of those portions of the magistrate’s report, findings or recommendations to which objection is made. Defendant urged that the district judge was required to personally hear the controverted testimony on the motion to suppress. The Supreme Court held that because the statute called for a “de novo determination” rather than a “de novo hearing,” the district judge was not required to rehear the testimony on which the magistrate based his findings and recommendations in order to make an independent evaluation of credibility. . The statute pursuant to which the penalty was assessed, 33 U.S.C. § 1321, does not specifically provide for a de novo hearing before the district court in a proceeding to collect the civil penalty. . The court held that the hearing" }, { "docid": "7905264", "title": "", "text": "of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (holding that district court did not abuse its discretion in denying plaintiffs request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); see also Wallace v. Tilley, 41 F.3d 296, 302 (7th Cir.1994) (“It is not in the interests of justice to allow a party to wait until the Report and Recommendation or Order has been issued and then submit evidence that the party had in its possession but chose not to submit. Doing so would allow parties to undertake trial runs of their motion, adding to the record in bits and pieces depending upon the rulings or recommendation they received.”) (internal quotation marks and citations omitted). At the same time, the district court had discretion to consider evidence that had not been submitted to the Magistrate Judge. Under 28 U.S.C. .§ 636(b)(1), the Magistrate Judge’s Report-Recommendation was subject to de novo review as to those issues upon which the parties raised • objections. Both § 636(b)(1) and Fed.R.Civ.P. 72(b) explicitly permit the district court to receive additional evidence as part of its review. See 28 U.S.C. § 636(b)(1) (1994) (“[T]he [district] judge may also receive further evidence____”); Fed.R.Civ.P. 72(b) (“The district judge to whom the ease is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made----”); see also 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3070.2, at 378 (1997) (“The statute and the rule both confirm, further, that the district judge is completely free to supplement the record developed by the magistrate judge with further evidence ....”). We do not think that the district court here abused its discretion in considering the defendants’ supplemental evidence. The defendants plausibly asserted that they originally construed all of plaintiffs causes of action to be governed by Sandin, and therefore did not address the separate merits of the retaliation claim before the" }, { "docid": "14377194", "title": "", "text": "liable for consequential damages up to $1.5 million. This argument was never raised in front of Magistrate Frazier; thus, ARM has filed a motion to strike these arguments. A. The United States Magistrate Act, 28 U.S.C. §§ 631 et seq., was passed to help district courts deal with an ever increasing workload. Among its provisions is one allowing district judges to designate magistrates to conduct hearings, including evi-dentiary hearings, and to submit to the judge proposed findings of facts recommendations for the disposition of a pretrial motion. 28 U.S.C. § 636(b)(1). After a magistrate issues his recommendation, the parties have ten days in which to file objections to the recommendations. Id. If objections are properly filed, the district judge must make a de novo determination of those portions of the report which are objected to. Id; Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). Congress extended this provision to include pretrial dispositive motions in 1976. Pub.L. 94-577, 90 Stat. 2729. Magistrates were given this authority in order to allow district court judges to spend more of their time on the adjudication of a case at trial. H.R.Rep. 1609, 94th Cong.2d Sess. 7, reprinted in 1976 U.S.Code Cong, and Ad. News 6162, 6167. Congress explained the requirements for a de novo determination: The use of the words “de novo” determination is not intended to require the judge to actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate. In some specific instances, however, it may be necessary for the judge to modify or reject the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the magistrate for further proceedings. H.R.Rep. 1609, 94th Cong., 2d Sess. 3, reprinted in 1976 U.S.Code Cong, and Ad. News at 6163. Under this form of de novo review, a district judge must first look to the record developed before the magistrate. If" }, { "docid": "10475975", "title": "", "text": "ORDER ROBERT E. JONES, Judge: Magistrate John Jelderks filed Findings and Recommendation on June 24,1993 in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate’s report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). Plaintiff has timely filed objections. I have, therefore, given de novo review of Magistrate Jelderks’ rulings. I find no error with Magistrate Jelderks’ factual findings. I agree that the ■ Secretary’s decision is not supported by substantial evidence and that plaintiff has been disabled since August 24, 1985. However, I also agree with one of plaintiffs two objections to Magistrate Jelderks’ recommendation. Magistrate Jelderks recommends payment to plaintiff beginning on the date of her initial application for benefits, March 17, 1986. Rather, plaintiff is entitled to benefit payments commencing February 25, 1986, at the end of the five-month waiting period required by 42 U.S.C. § 423. See 42 U.S.C. § 423(b) (“An individual who would have been entitled to a disability insurance benefit for any month had he filed application therefor before the end of such month shall be entitled to such benefits for such month if such application is filed before the end of the 12th month immediately succeeding such month.”). Plaintiffs second objection is based on a mistaken belief that Magistrate Jelderks recommended her benefits . run only through March 3,1992, the date of her hearing before the ALJ. Rather, Magistrate Jelderks “ex-pressfed] no opinion as to plaintiffs condition subsequent to March 3, 1992” and recommended that the ease be remanded for a determination of benefits. I agree with Magistrate Jelderks’ recommendation. I ADOPT Magistrate Jelderks’ Findings and Recommendations dated June 24, 1993, as modified by this Order. IT IS SO ORDERED. • FINDINGS AND RECOMMENDATION JELDERKS, United States Magistrate Judge: Plaintiff Carol" }, { "docid": "16244639", "title": "", "text": "the Clean Air Act allows the EPA to appoint private contractors as authorized representatives to perform compliance inspections. This court will address the first issue for if we find that the district court did err by applying the incorrect standard of review to the magistrate’s report, then a remand to the district court is appropriate and the other issues need not be addressed. We agree with Alcoa that the district judge failed to review the magistrate’s proposed Findings of Fact and Conclusions of Law properly, and the case should be remanded for a de novo determination in accordance with 28 U.S.C. § 636(b)(1)(C). • There is nothing in the record to inform this court of the authority relied on by the district court in referring the motion to the magistrate. Clearly the parties did not consent to the magistrate’s jurisdiction under 28 U.S.C. § 636(c)(1). Under 28 U.S.C. § 636(b)(1)(A) a judge may have a magistrate decide any “pretrial matter” except certain specified motions. These exceptions are motions which Congress considered to be “dispositive.” See, House Report No. 94-1609, P.L. 94-577, reprinted at [1976] U.S. Code Cong. & Ad.News 6162; see also, United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Because under § 636(b)(1)(A) the magistrate will not be disposing of the entire case, Congress provided that the judge need only determine if the magistrate’s order is “clearly erroneous or contrary to law.” The judge could not have referred Alcoa’s motion, therefore, under § 636(b)(1)(A). The motion was not a “pretrial matter” but set forth all of the relief requested. The magistrate certainly treated it as dispositive. Therefore, the judge had to refer the motion under § 636(b)(1)(B) or § 636(b)(3). Under either, the judge is obligated to review the magistrate’s order by giving the parties a “de novo determination.” A “de novo determination” is not specifically defined in the Act, but the legislative history makes clear that it does not necessarily mean a de novo hearing. House Report No. 94-1609, P.L. 94-577, reprinted at [1976] U.S. Code Cong. & Ad.News 6162. Rather, the" }, { "docid": "10550138", "title": "", "text": "“[a]s between [the] prospective defendant and prospective plaintiff, the latter is in by far the better position to determine the worst-case scenario or, if uncertain, to paint the picture as bleakly as reason permits and conscience allows.” Id. (emphasis added). Furthermore, “[i]f a plaintiff misjudges, as to matters known or easily deducible when [his] claim is filed, it seems more equitable for [him] to bear the burden of miscalculation than to impose it on the sovereign.” Id. Herein, the magistrate judge characterized the recommended second surgery at issue, to correct ACL damage, as being “unrelated” to the earlier surgery, which involved the same knee and revealed the ACL tear. The magistrate judge rejected the view that plaintiff’s second surgery was cumulative and confirmatory of earlier diagnoses. Respectfully, the court must disagree. In the face of well-documented ACL damage, one surgery, and subsequent ongoing knee problems, and while mindful of the consequences to plaintiff, the court is unable to say that Myers’ need for additional surgery was unforeseeable. Thus, defendant herein cannot be made to bear the burden of plaintiff’s failure to depict the worst-case scenario. 3. Conclusion Accordingly, the August 3,1992, order of the magistrate judge must be and herewith is reversed, but only to the extent that it addresses plaintiff’s motion to amend damages. Therefore, plaintiff is enjoined from increasing his ad damnum beyond the amount requested in his administrative filing. SO ORDERED. . 28 U.S.C. § 636(b)(1) provides that a district judge must make a \"de novo determination.” This does not require the district court to hold a de novo hearing; rather, consideration of the record as developed before the magistrate judge satisfies the de novo determination. United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 2411-13, 65 L.Ed.2d 424 (1980). . Surgical removal of the kneecap. Id. at 684." }, { "docid": "7388605", "title": "", "text": "though specific timely exception was made to the recommendations.” Id. We disagree. Pursuant to Fed.R.Civ.P. 72(b), a district court “to whom the case is assigned shall make a de novo determination upon the record ... of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule.” See also 28 U.S.C. § 636(b)(1) (imposing the same requirement on the district court). Garcia argues that because he made specific written objections to the magistrate’s recommendations, the district court had a duty to conduct a de novo review of the record. According to Garcia, the district court’s failure to make clear and adequate findings and conclusions show that it did not conduct de novo review; consequently, we should remand for reconsideration. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (“Where circumstances indicate that the district court has not conducted such review following timely objection to the magistrate’s report, the case must be remanded for compliance with the statute.”). The district court’s order is terse. It contains one sentence on each of Garcia’s substantive claims and does not mention his procedural challenges to the jurisdiction of the magistrate to hear the motion. See Appendix at 147. However, neither 28 U.S.C. § 636(b)(1) nor Fed. R.Civ.P. 72(b) requires the district court to make any specific findings; the district court must merely conduct a de novo review of the record. In Griego v. Padilla (In re Griego), 64 F.3d 580 (10th Cir.1995), this court addressed a similarly terse order. In Griego, the district court “merely repeated the language of § 636(b)(1) to indicate its compliance.” Id. at 584. The court held that such treatment was sufficient: It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court’s statement as establishing that it failed to perform the required de novo review. Id.; see" }, { "docid": "18915961", "title": "", "text": "as motions to dismiss or for summary judgment. See 28 U.S.C. § 636(b)(1)(A). In cases involving these latter-kind matters that are excepted from a hearing and determination by the magistrate judge, the district court may designate the magistrate judge to conduct an evidentiary hearing on the matter, and to submit proposed findings of fact and recommendations to the district court. 28 U.S.C. § 636(b)(1)(B). The instant reference to Judge Chrein concerns a dispositive issue, because a finding that the Asociación is Wet-terer’s alter ego can result in dismissing the Asociacion’s claim. The statute requires that with respect to proposed findings and recommendations made under section 636(b)(1)(B), the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” and that the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” See 28 U.S.C. § 636(b)(1)(C). In order to make a sufficient de novo determination under the statute, the district court must conduct an independent review of all objections and responses to the magistrate’s findings and recommendations. See, e.g., United States v. Tortora, 30 F.3d 334, 337 (2d Cir.1994); Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045 (2d Cir.1992). By using the phrase de novo determination, however, rather than de novo hearing, Congress intended “ ‘to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations.’ ” Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989) (quoting United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980)). Thus, the statute does not require the district court to rehear the contested testimony in order to make its determination. Grassia, 892 F.2d at 19 (citing Raddatz, 447 U.S. at 674, 100 S.Ct. at 2411). 2. The Disentitlement Doctrine. Prior to addressing the claimant’s objections, some discussion of the disentitlement doctrine is required, in order to clarify certain threshold issues, as well as the nature of the issue before" }, { "docid": "10550131", "title": "", "text": "ORDER DEVINE, Senior District Judge. In this action arising under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., defendant United States of America objects to and moves for reconsideration of the magistrate judge’s order of August 3, 1992. Therein, the magistrate judge granted plaintiff’s motion to more than triple his ad damnum beyond the amount requested in his administrative claim. Pursuant to 28 U.S.C. § 636(b)(1), this court makes a “de novo determination.” 1. Background The court assumes the parties’ familiarity with the record, and thus recites only those facts necessary for resolution of the issue at hand. On August 21, 1989, plaintiff suffered fractures of his left patella and left tibia when the motor vehicle he was operating was involved in a collision with a vehicle driven by a United States Postal Service employee. On August 23, 1989, plaintiff initially visited Dr. John Bloom, an orthopedic surgeon. Dr. Bloom’s October 6,1989, assessment includes the following: “? anterior cruciate ligament injury.” On December 5, 1989, after ongoing consultation with Dr. Bloom, plaintiff underwent arthroscopic surgery. The surgery confirmed that plaintiff suffered from the two above-mentioned fractures and from a partial tear of the anterior cruciate ligament (ACL) in his left knee. By February of 1990, Dr. Bloom authorized plaintiff to resume work. On March 28, 1990, Dr. Bloom noted that although plaintiff had a good range of motion in his left knee, he did have mild medial laxity. On February 1, 1991, plaintiff filed his administrative claim alleging $23,000 in damages for injuries suffered, $7,000 in damages for lost wages, and $500 in property damage. As the Postal Service failed to act upon plaintiff’s claim within the statutorily allowed six months, plaintiff on August 28, 1991, filed suit in this court under the FTCA. Due to the significant limitation of mobility in plaintiff’s left knee, on April 1, 1992, Dr. Bloom advised plaintiff that he was a candidate for further reconstructive surgery to the left ACL before he did “further damage to this left knee.” In his April 16, 1992, letter to plaintiffs counsel, Dr. Bloom" }, { "docid": "22766844", "title": "", "text": "First and Fifth Circuits, we conclude that a district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. We emphasize, howev er, that in making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion. The language of the Magistrate Act, its legislative history, Supreme Court precedent, and practical considerations support our conclusion. Most importantly, the language of the statute grants discretion to a district court. As Howell points out, if a party files timely written objections to a magistrate judge’s recommendation, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added). In making its de novo determination, “[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” Id. (emphases added). By utilizing the words “shall” and “may” in consecutive sentences, Congress clearly indicated that district courts are required to make a de novo determination of the portions of the magistrate judge’s report to which a party objects, but that in making that determination the court may receive further evidence. See id. The legislative history giving rise to the provision provides more insight: The use of the words “de novo ” determination is not intended to require the judge actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate. In some specific instances, however, it may be necessary for the judge to modify or reject the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the" }, { "docid": "2340836", "title": "", "text": "word “determine” or “determination” alone does not suffice to require a de novo scope of review and standard of review. In one such instance where Congress expressly required that a “de novo determination” be made, the Supreme Court held that meant de novo review and not necessarily a de novo hearing. United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Section 636 of Title 28 authorizes district courts to refer certain pretrial matters to magistrate judges to “hear and determine.” With respect to certain dispositive motions, the magistrate judge proposes findings of fact and recommendations, to which the parties may file objections. Id. § 636(b). The district court “shall make a de novo determination of those portions of the report ... to which objection is made.” 28 U.S.C. § 636(b)(1)(c) (emphasis added). In Raddatz, the Court found it “clear that on these dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” 447 U.S. at 674, 100 S.Ct. 2406. It explained that Congress’s use of the phrase “de novo determination” did not require a judge to “rehear the contested testimony in order to carry out the statutory command to make the required ‘determination.’ ” Id. In support of its interpretation, the Supreme Court looked to the legislative history, where Congress explained its use of the phrase “de novo determination”: The use of the words ‘de novo determination’ is not intended to require the judge to actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the find ings and conclusions of the magistrate. In some specific instances, however, it may be necessary for the judge to modify or reject the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the magistrate for further proceedings. Id. at 675, 100 S.Ct. 2406 (quoting H.R.Rep. No. 94-1609, at 3 (1976), 1976 U.S.C.C.A.N. 6162, 6163). Thus, “[t]he" } ]

[ { "docid": "19288047", "title": "", "text": "it first had to decide whether the fees were nondischargeable under § 523(a)(5). Doe, 193 B.R. at 16. As stated by the bankruptcy court in In re Grady, 180 B.R. 461, 464 (Bankr.E.D.Va.1995): Notwithstanding the fact that the issue was brought under § 507(a)(7)(B), the plethora of case law discussing whether debts are 'actually in the nature of alimony, maintenance or support’ under § 523(a)(5) is applicable and useful precedent in determining whether such debts should receive priority treatment. Id. .Section 523(a)(5) states, in relevant part: A discharge under section ... 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record.. .but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ... or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5) (1994). . \"In the context of § 523(a)(5) 'substance prevails over form.’ ” Dressler v. Dressier (In re Dressler), 194 B.R. 290, 295 (Bankr.D.R.I.1996) (quoting Warren v. Warren (In re Warren), 160 B.R. 395, 398 (Bankr.D.Me.1993)). . In her opening brief, Debtor spends significant time arguing that the Health Professionals’ fees are dischargeable under § 523(a)(15). She contends that § 523(a)(15)'s subsections clearly weigh in her favor and required the bankruptcy court to find the Health Professionals’ fees dis-chargeable. Additionally, she asserts that because she is in a chapter 13, § 523(a)(15) is not available to Ting. See 11 U.S.C. § 1328(a)(2) (1994). Debtor’s argument completely ignores the bankruptcy court’s holding that the Health Professionals’ fees were nondischargeable under § 523(a)(5), not § 523(a)(15). Therefore, almosL all of Debtor’s argument in her opening brief concerning the dischargeability of the Health Professionals' fees is irrelevant and will not be addressed. Only her argument that the Health" } ]

[ { "docid": "10538774", "title": "", "text": "debt— (A) is assigned to another entity, voluntarily, by operations of law, or otherwise; or (B) includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support.... Whether a claim constitutes an obligation in the nature of alimony, maintenance, or support has been addressed in the context of a determination of dischargeability under 11 U.S.C. § 523(a)(5) by the Third Circuit Court of Appeals in In re Gianakas, 917 F.2d 759, 762-64 (3d Cir.1990). See, e.g., In re Bonillo, 130 B.R. 438, 443-45 (Bankr.E.D.Pa.1991). The parties, both referencing Gianakas at length, appear to agree that a § 507(a)(7) determination should be guided by the same factors as a § 523(a)(5) determination. See In re Chang, 210 B.R. 578, 581 n. 11 (9th Cir. BAP 1997); and In re Grady, 180 B.R. 461, 464 (Bankr.E.D.Va.1995). Gianakas held that a debtor’s obligation to pay a second mortgage on the home of a nondebtor dependent spouse was, in the context of the facts of the case, in the nature of support and thus nondischargeable. Id. at 764. The court also posited that “the great weight of authority holds that an assumption of mortgage debts by one spouse so that the other could remain in the home is generally an obligation in the nature of support.” Id. In reaching its decision, the Gianakas court examined three principle factors which it believed synthesized as many as fifteen (15) factors referred to by various other courts on the question of determining the controlling intent of the parties to classify such debts. Id. at 762, citing Buccino v. Buccino, 397 Pa.Super. 241, 254, 580 A.2d 13, 19-20 (1990). The factors referenced in Gianakas are (1) the language and substance of the agreement; (2) the parties’ relative financial circumstances; and (3) the function served by the obhgation. Id. at 762, 763. Considering first the issue of language used by the parties in the Agreement, we note that the Agreement is memorialized only by a transcript of an oral settlement between the parties at the hearing of January" }, { "docid": "1859319", "title": "", "text": "by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. This is another case illustrating the tension existing between two principles — the goal of the Bankruptcy Code to provide a fresh start to the honest debtor and the obligation, recognized under § 523(a)(5) of the Bankruptcy Code, to support one’s spouse and children. Here, the issue presented is whether the private school tuition and related attorney fee obligations are excluded from Defendant’s Chapter 7 discharge. The Bankruptcy Code does not define “alimony, maintenance, or support.” In re Grimes, 46 B.R. 84, 86 (Bkrtcy.D.Md.1985). As is clear from case law, a determination of whether a debt is in the nature of alimony, maintenance, or support under § 523(a)(5) is a question of federal bankruptcy law and the intent of the parties at the time of the divorce decree. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (C.A.10 1989); In re Gatliff, 266 B.R. 381, 387 (Bkrtcy.N.D.Ill.2000); In re Coffman, 52 B.R. 667, 670 (Bkrtcy.D.Md.1985). To ascertain the intent of the parties, courts examine the circumstances surrounding the agreement at the time that they entered into it. In re Gianakas, 917 F.2d 759, 762 (C.A.3 1990); In re Yeates, 807 F.2d 874, 878 (C.A.10 1986). Defendant argues that there is a genuine dispute as to whether the parties intended to create a child support obligation when they agreed to share equally in the children’s private school tuition and related expenses. In support, Defendant points out that the obligation of Defendant to equally share the “tuition and related costs associated with private school” is not listed under the heading “Child Support,” rather under" }, { "docid": "10578778", "title": "", "text": "something is actually in the nature of support is [therefore] a question of federal bankruptcy law, and not state law.... Courts have held that the ‘label applied to the obligation by the [state] court or the parties is not necessarily controlling for Bankruptcy Code purposes.’ ” LaVergne v. LaVergne (In re LaVergne), 2011 WL 1878093, at *2 (Bankr.D.N.J. May 17, 2011) (Ferguson, J.) (quoting Werthen v. Werthen (In re Werthen), 329 F.3d 269, 272-74 (1st Cir.2003)). The Third Circuit Court of Appeals has noted that whether an obligation is in the nature of alimony, maintenance or support, as distinguished from a property settlement, depends on a finding as to the intent of the parties at the time of the settlement agreement.... That intent can best be found by examining three principal indicators .... First, the court must examine the language and substance of the agreement in the context of surrounding circumstances, using extrinsic evidence if necessary.... [Second, the court must examine] the parties’ financial circumstances at the time of the settlement. ... Third, the court should examine the function served by the obligation at the time of the divorce or settlement. An obligation that serves to maintain daily necessities such as food, housing and transportation is indicative of a debt intended to be in the nature of support. Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 762-63 (3d Cir.1990). 2. Section 523(a)(15) Section 523(a)(15) applies to non-support obligations arising out of a divorce or separation, excepting from discharge any debt to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit[.] 11 U.S.C. § 523(a)(15). This provision has been read to encompass a range of matrimonial debts, including obligations arising out of property settlement agreements and equitable distribution judgments. In re Clouse, 446 B.R. 690," }, { "docid": "21103007", "title": "", "text": "of § 523(a)(5), which excepts from discharge debts in the nature of alimony and child support. See In re Crosby, 229 B.R. 679, 681 (Bankr.E.D.Va.1998). “Notwithstanding the fact that the issue was brought under § 507(a)(7)(B), the plethora of case law discussing whether debts are ‘actually in the nature of alimony, maintenance or support’ under § 523(a)(5) is applicable and useful precedent in determining whether such debts should receive priority treatment.” See In re Grady, 180 B.R. 461, 464 (Bankr.E.D.Va.1995); accord In re Crosby, 229 B.R. at 681. Section 523(a)(5) excepts from discharge obligations of a debtor to a spouse or former spouse for alimony, maintenance, or support arising out of a separation or divorce. See 11 U.S.C. § 523(a)(5); In re Macys, 115 B.R. at 889. However, a debtor’s liability which represents a spousal property settlement is not within the exception and is therefore dis-chargeable under § 523(a)(5). See id. “To determine whether an attorney fee award is nondischargeable, the [c]ourt must first determine whether the debt connected with the fees is nondischargeable.” Roberson v. Roberson (In re Roberson), 187 B.R. 159, 163 (Bankr.E.D.Va.1995) (fee award held nondischargeable where integrally linked to the state court’s award of child support); accord Bulman v. Bulman (In re Bulman), 123 B.R. 24, 28 (Bankr.E.D.Va.1990) (fee award held nondischargeable where sufficiently related to order of support payments). The burden is placed upon the objecting spouse to prove that a debt connected with attorney fees is nondischargeable under § 523(a)(5) because it is “actually in the nature of alimony, maintenance or support.” See Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986). Whether the debt connected with the attorney fees is nondischargeable turns on bankruptcy law and not state law; the bankruptcy court must make an independent determination of what constitutes alimony, maintenance or support under federal standards. See In re Macys, 115 B.R. at 890. However, there is a tension between this principle and the fact that there is no federal law of domestic relations. See id. Under federal bankruptcy law, the nature of an award is based upon the intent of the" }, { "docid": "14138832", "title": "", "text": "motor home purchased with the funds from the second mortgage, and that therefore the obligation should be found to be in the nature of a property settlement. Looking beyond such reasoning, it is clear that the effect of Debt- or’s nonpayment on the second mortgage would not result in a foreclosure on the motor home, but rather on the principal residence occupied by Plaintiff and the children if Plaintiff were unable to pay the debt. The parties were likely aware or made aware of this fact, and it appears to the Court that the intention of the parties at the time the Stipulation was entered into was that this obligation function as an indirect form of support. See Gianakas, 917 F.2d at 764 (finding that debtor’s spouse could not have maintained family home for herself and children without debtor’s payment of second mortgage); Tunny v. Ploski (In re Ploski), 44 B.R. 911 (Bankr.D.N.H.1984) (indicating that debtor’s assumption of second mortgage constituted support). Consideration of the foregoing factors leads the Court to conclude that Debtor’s obligation to pay the second mortgage was intended to be and is in the nature of support. Therefore, under Code § 523(a)(5), this debt is nondischargeable by Debtor. 2. Credit Card Debts Plaintiff also argues that Debtor’s assumption of three credit card debts should be found to be nondischargeable. Specifically, these debts concern the Discover Card, AAA Visa and Sears credit cards. Once again utilizing the Gianakas test, the Court finds that unlike the second mortgage, assumption of these debts constituted part of a property settlement. There is no indication in the language and substance of the Divorce Decree or Stipulation which indicates that Debtor’s assumption of these debts was intended to constitute alimony, support or maintenance. To the contrary, the language of the Stipulation indicates that responsibility for these debts was apportioned between the parties. Debtor assumed the entire balance of the AAA Visa account, but assumed only one-half of the balances on the Sears and Discover Card accounts, with Plaintiff assuming the remainder. Other settlement language in the Stipulation also supports a finding that" }, { "docid": "17472071", "title": "", "text": "that he would “assume and pay until satisfied the second mortgage” on that marital home. The settlement agreement made Karen solely responsible for the first mortgage and an additional mortgage on an attached garage. After the divorce, she continued to live in the marital home with the four children. Paul stopped making payments on the second mortgage in January 1988, and on October 3, 1988, he filed a claim for relief under Chapter 7 of the United States Bankruptcy Code. On November 14, 1988, Karen filed a motion in the bankruptcy court for a determination that Paul’s obligation for the second mortgage was not subject to the automatic stay of 11 U.S.C. § 362(a) because it was in the nature of alimony, maintenance or support. After an evidentiary hearing, which the bankruptcy court accorded the status of an adversary proceeding, the court agreed with Karen’s position and found that appellant’s second mortgage obligation was in the nature of alimony, maintenance or support. Therefore, it ruled that pursuant to 11 U.S.C. § 362(b)(2), the debt is not subject to the automatic stay and is exempt from discharge pursuant to 11 U.S.C. § 523(a)(5). In re Gianakas, 100 B.R. 787 (Bankr.W.D.Pa.1989). Paul appealed to the district court, which affirmed. In re Gianakas, 112 B.R. 737 (W.D.Pa.1990). He now appeals to this court. II. Under the Bankruptcy Code, the general discharge which a debtor obtains under 11 U.S.C. § 727(b) for debts that arose before the date of the order for relief, does not discharge an individual debtor from any debt ... to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order ..., or property settlement agreement, but not to the extent that ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support____ 11 U.S.C. § 523(a)(5) (1988) (emphasis added). Concomitantly, “[t]he filing of a petition ... [in bankruptcy] does not operate as a" }, { "docid": "1071343", "title": "", "text": "Garner, — U.S.-, 111 S.Ct. 654, 659-61, 112 L.Ed.2d 755 (1991). The determination as to whether a particular obligation is “in the nature of alimony, maintenance, or support” for bankruptcy purposes is a question of federal, not state, law. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 364 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6320; also S.Rep. No. 989, 95th Cong., 2d Sess. 79 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5865. A debt may qualify as alimony, maintenance, or support, for purposes of § 523(a)(5), even if it does not legally qualify as such under state law. See In re Yeates, 807 F.2d 874, 878 (10th Cir.1986). The bankruptcy court must look beyond the label, if any, attached to a given obligation to ascertain its true nature. See In re Gianakas, 917 F.2d at 762. Whether the obligations at issue here are in the nature of alimony, maintenance, or support, as opposed to being part of a property distribution, depends on the intent of the state court which issued the equitable distribution decree. In re Gianakas, 917 F.2d at 762. Three principal “indicators” must be examined in order to determine that intent. The court must first examine the language and substance of the decree in the context of surrounding circumstances, using extrinsic evidence when necessary. In re Gianakas, 917 F.2d at 762. This threshold inquiry frequently will not yield conclusive results, however. The state court may not have indicated whether a given obligation is intended as support for the understandable reason that the possibility of a subsequent bankruptcy proceeding was not taken into account when the decree was issued. In re Gianakas, 917 F.2d at 763. Moreover, an obligation designated by the court as a property settlement nonetheless may be related to support for bankruptcy purposes. See Buccino v. Buccino, 397 Pa.Super. 241, 251-52, 580 A.2d 13, 18-19 (1990). The second factor which must be considered in determining the true nature of a given obligation is the financial circumstances of the parties at the time the decree was issued. Whether one spouse had custody" }, { "docid": "22816192", "title": "", "text": "connection with a separation agreement, divorce decree or other order of a court of record, ... but not to the extent that— (B) such a debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). Pursuant to § 523(a)(5), “a given domestic obligation is not dischargeable if it is ‘actually in the nature of alimony, maintenance, or support.” In re Harrell, 754 F.2d 902, 904 (11th Cir.1985). Whether a given debt is in the nature of support is an issue of federal law. In re Strickland, 90 F.3d 444, 446 (11th Cir.1996). Although federal law controls, state law does “provide guidance in determining whether the obligation should be considered ‘support’ under § 523(a)(5).” Id. To make this determination a bankruptcy court should undertake “a simple inquiry as to whether the obligation can legitimately be characterized as support, that is, whether it is in the nature of support.” In re Harrell, 754 F.2d at 906. In conducting this inquiry, a court cannot rely solely on the label used by the parties. As other courts have recognized, “ ‘it is likely that neither the parties nor the divorce court contemplated the effect of a subsequent bankruptcy when the obligation arose.’ ” In re Gianakas, 917 F.2d 759, 762 (3d Cir.1990) (citation omitted). The court must therefore look beyond the label to examine whether the debt actually is in the nature of support or alimony. Id. A debt is in the nature of support or alimony if at the time of its creation the parties intended the obligation to function as support or alimony. See In re Brody, 3 F.3d 35, 38 (2d Cir.1993); In re Sampson, 997 F.2d 717, 723-24 (10th Cir.1993); In re Davidson, 947 F.2d 1294, 1296-97 (5th Cir.1991); In re Gianakas, 917 F.2d at 762; Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986); Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984); Williams v. Williams, 703 F.2d 1055, 1057-58 (8th Cir.1983). Thus, “the party seeking to hold the debt nondischargeable has" }, { "docid": "1091754", "title": "", "text": "523(a)(5). Under this section, an obligation is excepted from discharge only if it is actually in the nature of alimony, maintenance, or support, whether or not it is labelled as such in the divorce decree, and (with exceptions not applicable here) only if the obligation has not been assigned. This debt has not been assigned to another entity. The fact that it is payable to an entity other than the Debtor’s former spouse does not mean that the debt has been assigned or that the obligation to pay it is not a debt to the former spouse within the meaning of § 523(a)(5). The Debtor’s obligation to honor a debt owed by his ex-wife to a third party is just as much a debt to the ex-wife as it is to the third party. In re Spong, 661 F.2d 6, 10-11 (2d Cir.1981); In re Calhoun, 715 F.2d 1103, 1106-1107 (6th Cir.1983) (“[Payments in the nature of support need not be made directly to the spouse or dependant to be nondischargeable.” Id. at 1107). The crucial question with respect to such obligations to third parties is whether they are actually in the nature of alimony or support. Whether an obligation constitutes alimony or support, as opposed to property settlement, is an issue of federal bankruptcy law, not state law. The state law characterization of an obligation is relevant to this determination, but only as one among many factors to consider. The numerous courts that have identified relevant factors and discussed their relative importance have not settled on a common formula. They have issued several. Most are rather general; and those that focus on specific factors tend to offer little guidance regarding their interaction and relative importance. This is understandable because as the courts agree, each determination of the nature of an obligation requires an ad hoc inquiry. In re Gianakas, 917 F.2d 759, 764 (3rd Cir.1990). Thus the cases do not so much disagree over the correct test as they simply tend to focus on different aspects of the inquiry, as each case requires. The two cases that most specifically" }, { "docid": "16765570", "title": "", "text": "OPINION DAVID A. SCHOLL, Bankruptcy Judge. A. INTRODUCTION The instant proceeding to determine whether certain obligations undertaken by the Debtor-husband in a separation agreement with his ex-wife are nondischargeable as support and alimony to her under 11 U.S.C. § 523(a)(5), or are dischargeable as elements of a property settlement, obliges us to apply the principles set forth in In re Gianakas, 917 F.2d 759 (3d Cir.1990). We conclude that, while Gianakas references “the language and substance of the agreement” as one of three indicators to be considered in such a determination, a strong showing by the non-debtor spouse of the presence of the other two indicators — the parties’ relative financial circumstances and the function served by the obligation at the time of the agreement— requires a conclusion of nondischargeability. Therefore, we hold that all of the obligations in issue, including the Debtor’s liability to pay credit card debts in full which the agreement’s language suggests is not in the nature of alimony or support, are nondischargeable under § 523(a)(5). B. FINDINGS OF FACT/PROCEDURAL HISTORY 1. The Debtor in the underlying bankruptcy case, ANTHONY J. BORZILLO (“the Husband”), filed a voluntary Chapter 7 bankruptcy case on February 15, 1991. 2. The instant adversary proceeding was commenced on May 30, 1991, by the Husband against his former wife, EILEEN BORZILLO, now known as EILEEN ZAP-PALO (“the Wife”). In this proceeding, the Husband sought to have four of his obligations under a Separation Agreement between the parties approved by the Superior Court of New Jersey, Chancery Division, Gloucester County, Family Part, Docket No. FM-37223-89, on May 17,1990, accompanying the parties’ Divorce Degree (“the Agreement”), declared dischargeable; (1) Payments for two years on the mortgage securing the parties’ former marital residence at 2 Halley Lane, Sewell, New Jersey, 08080 (“the Home”), conveyed to the Wife pursuant to the Agreement; (2) Maintenance of life insurance coverage of $100,000 on the Husband’s life, under policies naming the parties’ daughter Elaine (24 years of age at present) as Trustee and both the Wife and the parties' son Stephen (17 years of age at present) as beneficiaries" }, { "docid": "16765582", "title": "", "text": "liability is actually in the nature of alimony, maintenance, or support; ... The issue of dischargeability of indebted-nesses under. 11 U.S.C. § 523(a)(5) must be decided under federal bankruptcy law, not state law. See, e.g., Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979); Gianakas, supra, 917 F.2d at 762; In re Schmiel, 94 B.R. 373, 380 n. 3 (Bankr.E.D.Pa.1988); and Buccino v. Buccino, 397 Pa.Super. 241, 248, 580 A.2d 13, 16-17 (1990) (state court has concurrent jurisdiction with the bankruptcy court to hear a § 523(a)(5) dispute, but the matter must be decided under federal bankruptcy law). Any proceeding seeking a determination regarding dischargeability of a debt is a core proceeding. 28 U.S.C. § 157(b)(2)(I). Therefore, we are obliged to finally determine as well as hear the instant proceeding.’ 28 U.S.C. § 157(b)(1). 2. THE STANDARDS APPLICABLE TO § 523(a)(5) DISPUTES ESTABLISH THAT THE HUSBAND’S OBLIGATIONS TO MAKE THE MORTGAGE PAYMENTS, MAINTAIN PERSONAL LIFE INSURANCE, AND PAY A PORTION OF THE ATTORNEY’S FEES OF THE WIFE ARE NONDISCHARGEABLE. Gianakas, supra, 917 F.2d at 762, it is established that whether an obligation is in the nature of alimony, maintenance or support, as distinguished from a property settlement, depends on a finding as to the intent of the parties at the time of the settlement agreement.... Further, the court states that such intent can best be found by examining three principal indicators.... First, the court must examine the language and substance of the agreement in the context of surrounding circumstances, using extrinsic evidence if necessary. ... Because the language of the agreement alone may not provide a sufficiently conclusive answer as to the nature of an obligation, the second indicator to which we must look to assist in ascertaining the parties’ interest is the parties’ financial circumstances at the time of the settlement. The facts that one spouse had custody of minor children, was not employed, or was employed in a less remunerative position than the other spouse are aspects of the parties’ financial circumstances at the time the obligation was fixed which shed light" }, { "docid": "18571173", "title": "", "text": "any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— ... such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support[.] 11 U.S.C. § 523(a)(5)(B) (1994) (emphasis ours). Accordingly, the question is routinely whether the debt is actually in the nature of alimony, maintenance or support. Id. If an obligation by a debtor to his or her former spouse is not actually in the nature of alimony, maintenance or support, but rather comprises a property settlement or division of marital property between the former spouses, then the obligation is fully dischargeable in bankruptcy. Brody v. Brody, 3 F.3d 35, 38 (2d Cir.1993) (citing Donahue v. Donahue (In re Donahue), 862 F.2d 259, 262 (10th Cir.1988); In re Coil, 680 F.2d 1170, 1171 (7th Cir.1982) (citing In re Maitlen, 658 F.2d 466 (7th Cir.1981))); Shine v. Shine (In re Shine), 802 F.2d 583, 586 (1st Cir.1986); Kavanakudiyil v. Kavanakudiyil (In re Kavanakudiyil), 143 B.R. 598, 601-02 (Bankr.S.D.N.Y.1992); Schmerzler v. Goodnight (In re Goodnight), 102 B.R. 799, 802 (D.Kan.1989). Whether an obligation is one of alimony, maintenance or support is a question of federal bankruptcy law, not state law. Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 439-40 (Bankr.E.D.N.Y.1990) (citing cases); Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th Cir. 1983). “Under bankruptcy law, the intent of the parties at the time a separation agreement is executed determines whether a payment pur suant to the agreement is alimony, support or maintenance within the meaning of section 528(a)(5).” Brody v. Brody (In re Brody), 8 F.3d 35, 38 (2d Cir.1993) (emphasis ours) (citing Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296-97 (5th Cir.1991); Gianakas v. Gianakas (In re Gianakas)," }, { "docid": "12396466", "title": "", "text": "objects to a debtor’s exemption claim, it bears the burden of proving that a particular exemption is not available. Fed. R. Bankr.P. 4003(c); In re Hodes, 402 F.3d 1005, 1010 (10th Cir.2005). Accordingly, in this case S & L and the Trustee bear the burden of proving that the Award does not constitute “alimony, support or maintenance” under § 522(d)(10)(D). A. Applicability of Gianakas In In re Gianakas, 917 F.2d 759 (3d Cir.1990), the Court of Appeals for the Third Circuit observed that “although the decree or settlement establishing the obligation almost invariably arises in the context of a state court proceeding, whether the obligation is in the nature of alimony, maintenance or support for the purposes of the Bankruptcy Code is a question of federal, not state, law.” Id. at 762 (citations omitted). If a state court designates an award as something other than alimony, support or maintenance, this label does not control a bankruptcy court’s finding as to its true function. Smith v. Pritchett (In re Smith), 398 B.R. 715, 721 (1st Cir. BAP 2008). The Court of Appeals in Gianakas set forth a three-pronged test to be applied when a court must decide whether or not a marital obligation should be considered as “alimony, maintenance or support.” The facts in Gianakas are different from the facts in the case at bar in two important respects. The Court of Appeals’ decision was rendered in the context of an objection to the discharge of a debt under 11 U.S.C. § 523(a), not an objection to property exemption claim under § 522(d)(10)(D). Also, in Gianakas, the parties had entered into a consensual agreement. In the case at bar, the issues of alimony and property division were determined by a divorce master. Therefore, before applying the Gianakas factors, I must determine whether these factual dif ferences make the holding in Gianakas distinguishable from the case at bar. In Gianakas, the Court of Appeals held that whether an award is a support obligation or something else must be determined by ascertaining the intent of the parties at the time of the settlement" }, { "docid": "14640774", "title": "", "text": "that this Court determine that alimony and support provided for in the aforesaid agreement be deemed non-dischargeable, as well as an obligation by Mr. Pollock to Mrs. Pollock to pay a One Hundred Fifteen Thousand Dollar ($115,000.00) sum in return for securing a conveyance of one half of the marital real estate. DISCUSSION This marks the first time that this Judge has had the opportunity to speak on these matters. The Court is fortunate to have the benefit of a Third Circuit Opinion which specifically outlines the applicable standards in determining the dischargeability of a domestic obligation. In re Gianakas, 917 F.2d 759 (3rd Cir.1990). We further have the benefit of a state court appellate decision which, coherently and methodically, enlightens this Court on the issues in a manner consistent with the holding of our Circuit. Buccino v. Buccino, 397 Pa.Super. 241, 580 A.2d 13 (1990). The initial focus of our problem begins with a recitation of 11 U.S.C. § 523(a)(5) which reads as follows: § 523 Exceptions to Discharge: (a) A discharge under section 727, 1141, [,] 1228(b), or 1328(b) of this title [11 USCS § 727, 1141, 1228(a), 1228(b), or 1328(b) ] does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act [42 U.S.C. § 602(a)(26) ], or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. Although the bankruptcy" }, { "docid": "10538773", "title": "", "text": "if a claim is entitled to priority under § 507, the debtor’s plan must provide for the full payment of that claim. 11 U.S.C. § 1322(a)(2). However, if a claim is not entitled to priority status, it can and often will be treated as a general allowed unsecured claim entitled to the same treatment as other such claims. The instant Plan, as is common in plans of low-income individuals, provides for no payments at all to general unsecured claimants. The provision of 11 U.S.C. § 507 pertinent here is § 507(a)(7), which provides as follows: (a) The following expenses and claims have priority in the following order: Seventh, allowed claims for debts to a spouse, former spouse or child of the debt- or, for alimony to, maintenance for, or support of such spouses or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a government unit, or property settlement agreement, but not to the extent that such debt— (A) is assigned to another entity, voluntarily, by operations of law, or otherwise; or (B) includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support.... Whether a claim constitutes an obligation in the nature of alimony, maintenance, or support has been addressed in the context of a determination of dischargeability under 11 U.S.C. § 523(a)(5) by the Third Circuit Court of Appeals in In re Gianakas, 917 F.2d 759, 762-64 (3d Cir.1990). See, e.g., In re Bonillo, 130 B.R. 438, 443-45 (Bankr.E.D.Pa.1991). The parties, both referencing Gianakas at length, appear to agree that a § 507(a)(7) determination should be guided by the same factors as a § 523(a)(5) determination. See In re Chang, 210 B.R. 578, 581 n. 11 (9th Cir. BAP 1997); and In re Grady, 180 B.R. 461, 464 (Bankr.E.D.Va.1995). Gianakas held that a debtor’s obligation to pay a second mortgage on the home of a nondebtor dependent spouse was, in the context of the facts of the case, in" }, { "docid": "1071342", "title": "", "text": "§ 523(a)(6) provides in part as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (5)to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ...; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. Since Marker objects to the discharge of these particular debts, she has the burden of proving that they are not dischargeable. See In re Gianakas, 917 F.2d 759, 761 (3d.Cir.1990). This she must show by a preponderance of the evidence. Grogan v. Garner, — U.S.-, 111 S.Ct. 654, 659-61, 112 L.Ed.2d 755 (1991). The determination as to whether a particular obligation is “in the nature of alimony, maintenance, or support” for bankruptcy purposes is a question of federal, not state, law. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 364 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6320; also S.Rep. No. 989, 95th Cong., 2d Sess. 79 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5865. A debt may qualify as alimony, maintenance, or support, for purposes of § 523(a)(5), even if it does not legally qualify as such under state law. See In re Yeates, 807 F.2d 874, 878 (10th Cir.1986). The bankruptcy court must look beyond the label, if any, attached to a given obligation to ascertain its true nature. See In re Gianakas, 917 F.2d at 762. Whether the obligations at issue here are in the nature of alimony, maintenance, or support, as opposed to being part of a property distribution, depends on the intent of the state court which issued" }, { "docid": "17472072", "title": "", "text": "not subject to the automatic stay and is exempt from discharge pursuant to 11 U.S.C. § 523(a)(5). In re Gianakas, 100 B.R. 787 (Bankr.W.D.Pa.1989). Paul appealed to the district court, which affirmed. In re Gianakas, 112 B.R. 737 (W.D.Pa.1990). He now appeals to this court. II. Under the Bankruptcy Code, the general discharge which a debtor obtains under 11 U.S.C. § 727(b) for debts that arose before the date of the order for relief, does not discharge an individual debtor from any debt ... to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order ..., or property settlement agreement, but not to the extent that ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support____ 11 U.S.C. § 523(a)(5) (1988) (emphasis added). Concomitantly, “[t]he filing of a petition ... [in bankruptcy] does not operate as a stay ... of the collection of alimony, maintenance, or support from property that is not property of the estate.” 11 U.S.C. § 362(b)(2) (1988). These provisions reflect the congressional preference for the rights of spouses to alimony, maintenance or support over the rights of debtors to a “fresh start” free of debts. Forsdick v. Turgeon, 812 F.2d 801, 804 (2d Cir.1987). A party, such as appellee here, who objects to the discharge of a particular debt has the burden of proving nondischargeability. Bankruptcy Rule 4005; Matter of Long, 794 F.2d 928, 930 (4th Cir.1986); In re Kleppinger, 27 B.R. 530, 531 (Bankr.M.D.Pa.1982). Paul Gianakas asserts as a preliminary matter that the bankruptcy court erroneously placed on him the burden of proving dischargeability. Unfortunately, the bankruptcy court’s statements on this issue are not pellucid. There was one occasion during the bankruptcy proceeding when the court stated, to Paul Gianakas’ counsel: “It’s your burden on the motion for relief from stay ... to show that this is not in the nature of alimony and support and/or that" }, { "docid": "16765581", "title": "", "text": "the attorney stated that he viewed the assumption of the mortgage payments and the credit card payments as financial trade-offs for waiver of the Wife’s strong permanent alimony claim. C. CONCLUSIONS OF LAW/DISCUSSION 1. THE ISSUE OF DISCHARGEABILITY OF INDEBTEDNESSES UNDER 11 U.S.C. § 523(a)(5) MUST BE DECIDED UNDER FEDERAL BANKRUPTCY LAW. The Bankruptcy Code section controlling the disposition of this dispute is 11 U.S.C. § 523(a)(5), which provides as follows: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with state or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; ... The issue of dischargeability of indebted-nesses under. 11 U.S.C. § 523(a)(5) must be decided under federal bankruptcy law, not state law. See, e.g., Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979); Gianakas, supra, 917 F.2d at 762; In re Schmiel, 94 B.R. 373, 380 n. 3 (Bankr.E.D.Pa.1988); and Buccino v. Buccino, 397 Pa.Super. 241, 248, 580 A.2d 13, 16-17 (1990) (state court has concurrent jurisdiction with the bankruptcy court to hear a § 523(a)(5) dispute, but the matter must be decided under federal bankruptcy law). Any proceeding seeking a determination regarding dischargeability of a debt is a core proceeding. 28 U.S.C. § 157(b)(2)(I). Therefore, we are obliged to finally determine as well as hear the instant proceeding.’ 28 U.S.C. § 157(b)(1). 2. THE STANDARDS APPLICABLE TO § 523(a)(5) DISPUTES ESTABLISH THAT THE HUSBAND’S OBLIGATIONS TO MAKE THE MORTGAGE PAYMENTS, MAINTAIN PERSONAL LIFE INSURANCE, AND PAY A PORTION OF THE ATTORNEY’S FEES OF THE WIFE ARE NONDISCHARGEABLE." }, { "docid": "14138822", "title": "", "text": "card debts are nondischargeable under Code § 523(a)(5) or (a)(15). Therefore, the Court will examine each subsection , and its applicability to the particular debts at issue. A. Code § 523(a)(5) Under the Code, a debt owed “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record” is not dis-chargeable. 11 U.S.C. § 523(a)(5). In contrast, property settlements are dischargeable in bankruptcy. See Brody v. Brody (In re Brody), 3 F.3d 35, 38 (2d Cir.1993); Zaera v. Raff(In re Raff), 93 B.R. 41, 44 (Bankr.S.D.N.Y.1988); see also Parker v. Donahue (In re Donahue), 862 F.2d 259, 262 (10th Cir.1988). For purposes of determining nondischargeability under Code § 523(a)(5), the characterization of an obligation as alimony, maintenance or support is a question of federal bankruptcy law. See Brody, 3 F.3d at 39; H.R. Rep No. 95-595, 95th Cong., 1st Sess. 364 (1977), reprinted in 1978 U.S.C.C.AN. 5787, 6320 (“What constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not State law”). It has been observed, however, that Congress could not have intended bank-, ruptcy laws regarding alimony and support to be formulated without reference to the reasoning of well-established State laws, and therefore the label attached to an obligation by a State court is strongly indicative of the nature of that obligation. See Forsdick v. Turgeon, 812 F.2d 801, 802-03 (2d Cir.1987); Pauley v. Spong (In re Spong), 661 F.2d 6, 9 (2d Cir.1981). In the instant case, neither the State court nor the parties labeled or otherwise characterized the obligations stipulated to in the Divorce Decree, although the parties did stipulate that they were giving up any mutual claims of support. Nonetheless, the bankruptcy court must look to the nature of the obligation, since a debt may well be in the nature of support under Code § 523(a)(5) even though it does not legally qualify as such under State law. See Gianakas v. Gianakas, (In re Gianakas), 917 F.2d" }, { "docid": "14138824", "title": "", "text": "759, 762 (3d Cir.1990) (citing In re Yeates, 807 F.2d 874, 878 (10th Cir.1986)). In the absence of any persuasive guidance from the Divorce Decree or the Stipulation as to the nature of the obligations, the Court must determine the intent of the parties at the time they agreed to the terms of the Stipulation in order to find whether the obligations constitute alimony, support or maintenance under Code § 523(a)(5). See Brody, 3 F.3d at 38 (citing Forsdick v. Turgeon, 812 F.2d 801, 802 (2d Cir.1987)). To assist in this endeavor, courts have examined a number of factors , although all evidence, whether direct or circumstantial, is relevant in determining the intent of the parties. See Brody, 3 F.3d at 38; see also Benich v. Benich (In re Benich), 811 F.2d 943, 945-46 (5th Cir.1987) (stating that trial court is entitled to weigh credibility of witnesses, actual situation of parties at time of agreement, and any other evidence which may assist in determining nature of payments). There is no hierarchy of importance among these factors or precise weight assigned to any one of them; instead the factors should be given weight and importance as the facts of the case require. See Bangert v. McCauley (In re McCauley), 105 B.R. 315, 319 (E.D.Va.1989). As articulated by the court in Gianakas, however, there are three principal factors which may be examined to assist in determining intent: (1) the language and substance of the divorce stipulation in the context of the surrounding circumstances, taking into consideration extrinsic evidence if necessary; (2) the financial circumstances of the parties at the time of the settlement; and (3) the function served by the obligation at the time of the divorce. Gianakas, 917 F.2d at 762-63. In the case sub judice, Plaintiff bears the burden of convincing the Court by a preponderance of the evidence that Debtor’s assumption of both the second mortgage and certain credit card debts was intended to be in the nature of maintenance or support within the meaning of Code § 523(a)(5). See Hrim, 196 B.R. at 241. Accordingly, the Court will" } ]

[ { "docid": "14595161", "title": "", "text": "federal grand jury returned an indictment charging Noel with illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326(a). Noel was arrested on April 22 and made his initial appearance before a magistrate judge that same day. Asserting a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-74, Noel moved to dismiss the indictment. The district court denied the motion and Noel entered a conditional guilty plea. On appeal, Noel challenges his indictment on the grounds that: (1) it violated his rights under the Speedy Trial Act; (2) it violated Federal Rule of Criminal Procedure 5(a); and (3) it violated Noel’s due process rights under the Fifth Amendment. When a Speedy Trial Act violation is alleged, we review the district court’s factual findings for clear error and its legal conclusions de novo. See Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir.1994). We review legal questions concerning the Rules of Criminal Procedure and the Constitution de novo. See United States v. Beach, 113 F.3d 188, 189 (11th Cir.1997) (rules of criminal procedure); United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir.1998) (constitutional claims). We conclude that none of Noel’s claims have merit. First, Noel’s indictment did not run afoul of the Speedy Trial Act. Noel bases his argument on the presumption that he was arrested on March 7, 1999, when his INS custody began. However, “the time period for the Speedy Trial Act should begin to run only after an individual is ‘accused,’ either by an arrest and charge or by an indictment.” United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir.1983). Noel was not charged with violating 8 U.S.C. § 1326(a) until April 15; his initial appearance before a federal magistrate followed one week later on the date of his arrest, thus Noel’s Speedy Trial rights were not violated. See United States v. Reme, 738 F.2d 1156, 1162 (11th Cir.1984) (although defendant was detained by INS on October 21, the Speedy Trial Act was not triggered until the following July when defendant was served by the U.S. Marshal with a" } ]

[ { "docid": "1433477", "title": "", "text": "cases. He contends that the judge erred in denying his pretrial motions. He also argues that he was denied his Sixth Amendment right to effective assistance of counsel during the bank robbery trial due to an alleged conflict of interest. Finally, he claims that the district court erred in finding that his conduct during one of the robberies involved an express threat of death requiring an increased sentence. I. Speedy Tidal Act Claims A. Did the District Court Err in Denying Hoslett’s Motion to Dismiss Based Upon Pre-Indictment Delay? The Speedy Trial Act provides that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). If the government fails to bring an indictment within thirty days after a suspect has been arrested on a charge and a complaint has been filed, then “such charge ... in such complaint shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). For the dismissal sanction of section 3162(a)(1) to apply, a suspect must either be formally charged at the time of or following his arrest, or be subject to some continuing restraint imposed in connection with the charge on which he is eventually tried. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir.1990); United States v. Candelaria, 704 F.2d 1129, 1131 (9th Cir.1983); accord United States v. Stead, 745 F.2d 1170, 1172 (8th Cir.1984). We review legal questions regarding application, of the Speedy Trial Act de novo, but factual findings are reviewed for clear error. United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991). Hoslett argues that in February 1990 he was arrested and held in connection with the bank robbery charges rather than for parole violations because: 1) Parole Commission records indicate that the parole violations warrant was not executed by the United States Marshals Service until six days after his arrest by the FBI; 2) after the FBI arrested Hoslett, its agents interrogated him regarding his involvement" }, { "docid": "7117015", "title": "", "text": "motion to dismiss the indictment based on the purported STA violation. The district court accepted the plea, and Kelly was sentenced to a term of 70 months on November 24, 2009. Kelly now appeals, raising a single challenge: that the delay between his appearance in Maine on October 23, 2006, pursuant to the writ of habeas corpus ad prosequendum, and the issuance of the Maine indictment on December 19, 2007, violated the STA and required dismissal of the indictment, pursuant to 18 U.S.C. §§ 3161(b), 3162(a)(1). II. Because this case involves interaction between the STA and writs of habeas corpus ad prosequendum, some context for each may be of use. A. The Speedy Trial Act Enacted in 1974 and amended in 1979, the STA imposes a variety of time limitations designed to ensure a speedy trial. First, the STA has a 30-day arrest to indictment requirement, which requires “[a]ny information or indictment charging an individual with the commission of an offense” to “be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). The purpose of this requirement “is to ensure that the defendant is not held under an arrest warrant for an excessive period without receiving formal notice of the charge against which he must prepare to defend himself.” United States v. Spagnuolo, 469 F.3d 39, 43 (1st Cir.2006) (quoting United States v. Meade, 110 F.3d 190, 200 (1st Cir.1997)) (internal quotation marks omitted). Second, the Act imposes a separate 70-day indictment to trial requirement, requiring that a trial “commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Not every calendar day constitutes a “day” for purposes of the STA, however; certain “periods of delay shall be excluded in computing the time” under both the arrest to indictment and indictment to trial sections. Id. § 3161(h)." }, { "docid": "18598220", "title": "", "text": "no provision of 18 U.S.C. § 3161(b) was violated. In a slightly earlier Eleventh Circuit case, United States v. Sayers, 698 F.2d 1128 (11th Cir.1983), no complaint or summons was issued until the indictment was handed down. The Court held that even though the appellant may have been under “arrest” more than thirty days before the indictment was filed, id. at 1130, the Speedy Trial Act was not triggered until “an individual is being held, either physically or legally to answer to a charge....” Id. at 1131. The Court, after noting that “the language of Section 3161(b) suggests that ‘arrest’ entails some accusation,” explained that the words “against whom a complaint is filed” as used in 18 U.S.C. § 3162(a)(1), “establishes that Congress intended the provisions of the Act to apply only if an individual was formally charged with an offense.” Id. at 1131. In Sayers the Eleventh Circuit did not state — nor, to the knowledge of this Court, has any other Court stated — that a federal complaint without a federal arrest or any restraint resulting from federal action brings the combination of 18 U.S.C. §§ 3161(b) and 3162(a)(1) into play. In United States v. Jones, 676 F.2d 327 (8th Cir.1982), Judge Ross reached “the conclusion that subsection 3161(b) is only applicable when the arrested individual is charged with an offense.” Id. at 329. But again that means that section 3161(b) requires an arrest as well as a charge — and as Iaquinta makes clear the arrest must be a federal arrest upon a federal charge. In sum, in order for the time limitations of 18 U.S.C. §§ 3161(b) and 3162(a)(1) to become applicable, both a federal complaint and a federal arrest and/or federal summons are required. Accordingly, neither the September 17, 1985, September 23, 1985 or November 21, 1985 events caused the time constraints of 18 U.S.C. §§ 3161(b) and 3162(a)(1) to be triggered. Appellant also contends that the trial court erred in denying his motion for a judgment of acquittal at the end of the government’s case and also at the end of the trial because" }, { "docid": "11288809", "title": "", "text": "removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act. 8 U.S.C. § 1326(a). . Rule 11, Féd.R.Crim.P., requires the district court to determine the accuracy of a plea before accepting it: \"Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such a plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” Fed. R.Crim.P. 11(f). . The Act mandates dismissal if the time limit between charging and indictment is exceeded: If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. 18 U.S.C. § 3162(a). For Espinoza, this time limit was thirty days: Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days. 18 U.S.C. § 3161(b). . The indictments, though, need not allege identical facts. As Perez demonstrates, minor variations in the facts alleged in the indictments will not prevent an initial indictment from tolling the STA clock. Perez, 217 F.3d at 328; see also United States v. Mitchell, 723 F.2d 1040, 1044-45 (1st Cir.1983) (holding that additional facts in superseding indictment filed more than thirty days after arrest did not violate STA). We express no opinion on the permissible variance of facts between indictments, because the issue is not before us. . See also United States v. Berry, 90 F.3d 148, 151 (6th Cir.1996) (stating" }, { "docid": "21730327", "title": "", "text": "motion alleged violations of 18 U.S.C. §§ 3161(b) and 3161(c)(1) and the fifth and sixth amendments. The case was once again set for trial on January 3, 1983. In an order dated January 5, 1983 and entered on the record January 6, 1983, the district court dismissed the indictment with prejudice. The government filed a petition for reconsideration on January 28, 1983, which the court denied on March 1, 1983. On June 30, 1983, the district court entered an order amending its earlier order of dismissal. 1. Delay Between Arrest and Indictment In his original and renewed motions to dismiss, Robinson asserted that his speedy trial rights were violated because the government failed to indict him within thirty days of his arrest as required by 18 U.S.C. § 3161(b). In its order dismissing the indictment, the district court character ized the period between Robinson’s arrest on September 11, 1981 and his indictment on August 23, 1982 as an “inordinate delay” in violation of Robinson’s constitutional right to due process and statutory right to a speedy trial. On appeal, the government argues that the period from September 14, 1981, when the government indicated it would not file a complaint against Robinson, to August 23, 1982, the date of the return of the indictment, should not be counted as nonexcludable time for purposes of section 3161(b) because no charges were pending against Robinson during that period. Although the record is somewhat unclear, it appears that Robinson was never formally charged at the time of his September 11, 1981 arrest. When Robinson appeared before a magistrate on September 14, 1981, the government stated that it would not file a complaint against him at that time. In United States v. Sayers, 698 F.2d 1128 (11th Cir.1983), a panel of this court held that the thirty-day period specified in section 3161(b) “should begin to run only after an individual is ‘accused,’ either by an arrest and charge or by an indictment.” Id. at 1131. If Robinson was never held to answer to a charge, the time limits imposed by section 3161(b) were not applicable. See" }, { "docid": "18598219", "title": "", "text": "the appellant and no taking of him into federal custody until he was turned over by the state authorities to the federal authorities, there was no violation of the Act in this prosecution. Id. at 1524. The appellant in the within case first appeared in federal court on December 10, 1985. He was first within the custody of federal law enforcement authorities on November 21, 1985 when such authorities transported appellant from the Prince George’s County Detention Center to Baltimore in order for appellant to appear before a federal grand jury. Appellant was indicted on December 20, 1985, twenty-nine days after November 21, 1985. Appellant was neither arrested nor summoned on a federal charge within the meaning of 18 U.S.C. § 3161(b) when appellant was transported to Baltimore November 21, 1985. However, in any event, that occurrence took place within thirty days of indictment. The detainer was lodged more than thirty days before the indictment but the detainer was not an arrest, see United States v. Shahryar, supra, nor was the detainer a summons. Accordingly, no provision of 18 U.S.C. § 3161(b) was violated. In a slightly earlier Eleventh Circuit case, United States v. Sayers, 698 F.2d 1128 (11th Cir.1983), no complaint or summons was issued until the indictment was handed down. The Court held that even though the appellant may have been under “arrest” more than thirty days before the indictment was filed, id. at 1130, the Speedy Trial Act was not triggered until “an individual is being held, either physically or legally to answer to a charge....” Id. at 1131. The Court, after noting that “the language of Section 3161(b) suggests that ‘arrest’ entails some accusation,” explained that the words “against whom a complaint is filed” as used in 18 U.S.C. § 3162(a)(1), “establishes that Congress intended the provisions of the Act to apply only if an individual was formally charged with an offense.” Id. at 1131. In Sayers the Eleventh Circuit did not state — nor, to the knowledge of this Court, has any other Court stated — that a federal complaint without a federal arrest or" }, { "docid": "18255064", "title": "", "text": "indictment. The district court sentenced Pete to four concurrent sentences of life imprisonment. This timely appeal followed. II. Pete contends that the district court erred by denying his motion to dismiss the indictment, arguing that the government violated the STA, 18 U.S.C. § 3161 et seq. Under 18 U.S.C. § 3161(b), “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” Section 3161(h) excludes certain periods of time from the time calculation under § 3161(b), stating: The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to — ... (E) delay resulting from any interlocutory appeal; (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.... 18 U.S.C. § 3161(h). Failure to comply with 18 U.S.C. § 3161(b) results in the dismissal of the complaint against the defendant. See 18 U.S.C. § 3162(a)(1). Pete’s STA clock did not begin running when the federal juvenile information was filed against him or when he was taken into federal custody. At those times, Pete was detained as an alleged juvenile delinquent and was subject to the speedy trial provision of the JDA. See 18 U.S.C. § 5036. Pete was not held in federal custody as an adult until October 29, 2003, when the district court granted the government’s motion to proceed against Pete as an adult. Although Pete’s STA clock began running on October 29, 2003 , it stopped on November 3, 2003, when Pete filed notice of his interlocutory appeal. See 18 U.S.C. § 3161(h)(1)(E). Pete’s STA clock remained stopped until at least December 21, 2004, when this court’s mandate issued, affirming the district" }, { "docid": "14802281", "title": "", "text": "review is for legal error. See Martinez-Molina, 64 F.3d at 732 (“Other than for etrors of law, we will overturn the trial judge’s decision to deny a motion to withdraw a guilty plea only for ‘demonstrable abuse of discretion.’”) (citation omitted) (emphasis added). Initially, the government contends that by unconditionally pleading guilty Garcia-Martinez has waived any STA claim. While some circuits have held that an unconditional guilty plea precludes a defendant from raising an STA claim, we have not yet spoken on that issue. See Acha v. United States, 910 F.2d 28, 30 (1st Cir.1990). We find it unnecessary to rule on the issue here because Garcia-Martinez’s substantive claim lacks merit. The STA states that “[a]ny ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges.” 18 U.S.C. § 3161(b). It further provides that “[i]f, in the case of any individual against whom a complaint has been filed charging such individual with an offense, no indictment ... is filed within the time limit required by section 3161(b) ... such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). The STA applies only to federal criminal prosecutions, and the time limit is triggered only by an arrest “in connection with [a criminal] chargef ].” 18 U.S.C. § 3161(b). All of the circuits that have considered the issue have concluded that an arrest on civil charges does not normally trigger the thirty-day clock under the STA. See, e.g., United States v. Cepeda-Luna, 989 F.2d 353, 356-58 (9th Cir.1993) (STA not triggered when defendant detained on civil charges by INS); see also United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000) (collecting cases). Cf. United States v. Chapman, 954 F.2d 1352, 1358 n. 8 (7th Cir.1992) (STA not triggered when defendant arrested by. state officers and questioned by federal officers); United States v. Blackmon, 874 F.2d 378, 381-82 (6th Cir.1989) (same); United States v. Taylor, 814 F.2d 172, 174-75 (5th Cir.1987)" }, { "docid": "23075355", "title": "", "text": "as a special condition of supervised release, that defendants shall not possess “sexually oriented or sexually stimulating materials.” Defendants challenge the timeliness of their indictments, their multiple § 924(c)(1) convictions, a jury instruction, the application of two sentencing guidelines, the length of their sentence for the carjacking conviction, and the special condition of supervised release. We address these questions in roughly chronological order from the pre-trial stage to trial to sentencing. II. Defendants argue that all counts but the kidnaping count were untimely under the Speedy Trial Act (“STA”), 18 U.S.C. § 3161 et seq., and therefore should have been dismissed. We review interpretations of the STA de novo and related factual questions for clear error. United States v. Martinez-Espinoza, 299 F.3d 414, 416 (5th Cir.2002). We disagree with defendants’ contentions. The STA requires an “indictment charging an individual with the commission of an offense” to be filed within thirty days of arrest. 18 U.S.C. § 3161(b). If “a complaint is filed charging such individual with an offense,” and the indictment charging the offense is untimely, “such charge against that individual contained in such complaint shall be dismissed.” 18 U.S.C. § 3162(a)(1). The complaint, issued on December 15, 2000, charged kidnaping. Defendants were arrested on December 16 and were timely indicted for kidnaping on January 3, 2001. The superseding indictment, issued May 16, charged the remaining four counts. Defendants argue that these charges are untimely and must be dismissed under § 3162(a)(2). Our precedents involve two kinds of allegedly untimely indictments. First, a defendant is charged in a complaint, arrested, and timely indicted for the offense charged in the complaint. Later (and after the STA period has run), a superseding indictment charges new offenses not contained in the complaint. United States v. Bailey, 111 F.3d 1229 (5th Cir.1997); United States v. Giwa, 831 F.2d 538 (5th Cir.1987). Second, a defendant is charged in a complaint, arrested, and timely indicted for an offense not charged in the complaint. Later (and after the STA period has run), a superseding indictment alleges the offense charged in the complaint. Martinez-Espinoza, 299 F.3d at 415-16;" }, { "docid": "14802282", "title": "", "text": "offense, no indictment ... is filed within the time limit required by section 3161(b) ... such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). The STA applies only to federal criminal prosecutions, and the time limit is triggered only by an arrest “in connection with [a criminal] chargef ].” 18 U.S.C. § 3161(b). All of the circuits that have considered the issue have concluded that an arrest on civil charges does not normally trigger the thirty-day clock under the STA. See, e.g., United States v. Cepeda-Luna, 989 F.2d 353, 356-58 (9th Cir.1993) (STA not triggered when defendant detained on civil charges by INS); see also United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000) (collecting cases). Cf. United States v. Chapman, 954 F.2d 1352, 1358 n. 8 (7th Cir.1992) (STA not triggered when defendant arrested by. state officers and questioned by federal officers); United States v. Blackmon, 874 F.2d 378, 381-82 (6th Cir.1989) (same); United States v. Taylor, 814 F.2d 172, 174-75 (5th Cir.1987) (STA not triggered when defendant arrested by state officers on state charges even though federal de-tainer had been lodged); United States v. Bell, 833 F.2d 272, 277 (11th Cir.1987) (STA not triggered when defendant arrested by state authorities on state charges although in a joint state-federal investigation). We find the reasoning of these cases persuasive and hold that an arrest on civil charges by the INS ordinarily does not trigger the STA when criminal charges are filed later. Garcia-Martinez argues that the indictment was untimely because the INS unreasonably delayed its decision whether to deport or prosecute him. See United States v. Restrepo, 59 F.Supp.2d 133 (D.Mass.1999); United States v. Pena, 73 F.Supp.2d 56 (D.Mass.1999). He would have the STA triggered by an INS arrest whenever the INS detains an alien longer than is necessary to effectuate a deportation in order to facilitate preparation' of a criminal case against him relating to the conduct for which he was arrested civilly. He argues that when he admitted on December 28, 1998, that he was a previous" }, { "docid": "16139346", "title": "", "text": "Wearing contends the district court erred by not dismissing the indictment because the government failed to indict him within thirty days of his “arrest” — that is, when he was placed in administrative segregation' on April 24, 2013 for possessing a shank.Nee 18 U.S.C. § 3161(b) (“[A]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”). Section 3162(a) of the Speedy Trial Act provides that “[i]f, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ,.. such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” In reviewing a district court’s denial of a motion to dismiss an indictment based on the Speedy Trial Act, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Herbst, 666 F.3d 504, 509 (8th Cir. 2012). “The [Speedy Trial Act] does not define ‘arrest’....” United States v. Piggie, 316 F.3d 789, 795 (8th Cir. 2003). However, we have previously construed the term “arrest” in § 3161(b) “as an arrest where the person is charged with an offense.” United States v. Jones, 676 F.2d 327, 331 (8th Cir. 1982); see also United States v. Peterson, 698 F.2d 921, 923 (8th Cir. 1982) (concluding “that the thirty-day arrest-to-indictment time limit does not commence until there is a pending criminal charge”). This is because § 3162(a)(1) does not provide a sanction “for delay in indictment unless a complaint has been filed.” Jones, 676 F.2d at 329; see also United States v. Abernathy, 688 F.2d 576, 578 n.2 (8th Cir. 1982) (noting that post-Jones, Abernathy’s detention would not be considered an “arrest” for purposes of triggering the thirty-day limitation of § 3161(b) because, although he was given his Miranda warnings and was not free tó leave, no complaint was issued). Because Wearing" }, { "docid": "16134191", "title": "", "text": "was thereafter sentenced and timely filed a notice of appeal to the district court, who affirmed the judgment of conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). DISCUSSION A brief detention and the issuance of a “violation notice” do not trigger the Speedy Trial Act. We review de novo the district court’s legal interpretation of the Speedy Trial Act. See United States v. Hall, 181 F.3d 1057, 1061 (9th Cir.1999). The Speedy Trial Act requires that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charge.”. 18 U.S.C. § 3161(b). “If, in the case of any individual against whom a complaint is filed charging such an individual with an offense, no ... information is filed within the time limit required by section 3161(b) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped....” 18 U.S.C. § 3162(a)(1). Boyd argues that the misdemeanor assault charge must be dismissed under the Speedy Trial Act because the government did not file an information against her ■within 30 days of her “arrest” at McClellan. The charge of assault on a federal employee is a class A misdemeanor because its maximum penalty is one year’s imprisonment. See 18 U.S.C. § 3559(a)(6). The Speedy Trial Act applies to class A misdemeanors. See id. at § 3172(2). Boyd points out that the information was not filed until more than 100 days after the incident in which she was detained, given a “violation notice,” and released. Boyd argues that, under these facts, she was “arrested,” as required by § 3161(b), and therefore is subject to the Speedy Trial Act’s protections. In response, the government contends that Boyd’s detention was not the type of “formal arrest” that triggers application of § 3161(b)’s requirement that the information be filed within 30 days of arrest. Boyd’s argument depends on the definition of “arrest” as understood in § 3161(b), and" }, { "docid": "6603988", "title": "", "text": "The jury convicted Stubblefield on all charges, and he now raises three challenges to his conviction. II Stubblefield’s first contention is that his indictment should have been dismissed pursuant to the 30-day complaint-to-indictment clock of the Speedy Trial Act, 18 U.S.C. §§ 3161(b), 3162(a)(1). Defense counsel filed a motion to dismiss on that ground in the district court, which the court denied without comment. We review a district court’s Speedy Trial Act determination “de novo [as to] matters of law,” and “for clear error as to findings of fact.” United States v. Sanders, 485 F.3d 654, 656 (D.C.Cir.2007). The Speedy Trial Act provides: “If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment ... is filed within the [30-day] time limit required by section 3161(b) as extended by section 3161(h) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). Stubblefield contends that, because 31 calendar days passed between the May 13 complaint and the June 13 indictment in his case, the Act required the district court to dismiss the case. The government does not dispute Stubblefield’s arithmetic. The Speedy Trial Act, however, contains exceptions to the 30-day rule. As just quoted, § 3162(a)(1) requires that the indictment be filed within the 30-day limit “as extended by section 3161(h).” That section provides, as particularly relevant here, that the “following periods of delay shall be excluded in computing the time within which ... an indictment must be filed”: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion. 18 U.S.C. § 3161(h). On appeal, the government suggests an array of days that might be excluded under this provision. However, because there were only 31 days between the complaint and Stubblefield’s indictment, there need only be one excluded day to bring the indictment within the Act’s" }, { "docid": "21730330", "title": "", "text": "charges are pending against the accused. United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696, 70S (1982). Similarly, once the government, acting in good faith, formally drops the charges, the speedy trial guarantee of the sixth amendment is no longer effective. Any undue delay following the dismissal is to be scrutinized by due process standards. Id. The due process clause of the fifth amendment requires dismissal of the indictment if the defendant can show that pre-indictment delay caused actual prejudice to his defense and was a deliberate action by the government designed to gain a tactical advantage. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481 (1971); Puett, 735 F.2d at 1334. We need not decide whether Robinson was actually prejudiced by dismissal of the charges because there is nothing in the record to suggest that the government delayed bringing the indictment in order to gain a tactical advantage. The district court accordingly erred in holding that Robinson’s statutory and constitutional rights were violated by the failure to indict him within thirty days of his arrest. II. Delay Between Indictment and Trial Robinson contended in his renewed motion to dismiss that the government also violated 18 U.S.C. § 3161(c)(1) by failing to commence the trial within seventy days of his September 3, 1982 arraignment. He argues that the district court correctly dismissed the charges against him because 109 days expired between his arraignment on September 3, 1982 and December 10, 1982, the date on which he filed his renewed motion to dismiss. The government maintains, though, that only forty-nine days of includable time elapsed between Robinson’s arraignment and the court’s January 6, 1983 order dismissing the indictment. Section 3161(c)(1) requires that a defendant be tried within seventy days of the filing date of the information or indictment, or of the date the defendant first appears before a judicial officer of the court in which the charge is pending, whichever occurs later. The seventy-day period is not a consecutive calendar period, however. United States v. Severdija, 723 F.2d" }, { "docid": "10617680", "title": "", "text": "purpose of the STA’s thirty-day arrest-to-indictment requirement “is to ensure that the defendant is not held under an arrest warrant for an excessive period without receiving formal notice of the charge against which he must prepare to defend himself.” United States v. Meade, 110 F.3d 190, 200 (1st Cir.1997) (quoting United States v. Berry, 90 F.3d 148, 151 (6th Cir.1996)) (internal quotation marks omitted). The defendant’s arguments are resolved against him by the text and purposes of the STA. The Act, at § 3161, provides in pertinent part: (b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.... (c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.... 18 U.S.C. § 3161(b), (c)(1). This establishes the two periods: thirty days to indictment and an additional seventy days to trial. The sanctions for non-compliance with § 3161 are set forth in § 3162, which provides: (a)(1) If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. (2) If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h) the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the" }, { "docid": "15289913", "title": "", "text": "one count of the indictment. The sole issue on appeal is whether the district court erred when it refused to dismiss Wright’s indictment, returned thirty-two days after his arrest, as in violation of the Speedy Trial Act. We review the legal conclusions in the district court’s application of the Speedy Trial act de novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.1991). The relevant provision of the Speedy Trial Act is clear. It states that [a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. 18 U.S.C. § 3161(b). Under 18 U.S.C. § 3162(a)(1), an indictment in violation of this time period must be dismissed. Wright’s argument is that the thirty-two days from the time of his arrest on August 16, 1991 to the day of his indictment on September 17, 1991 is a violation of this section and the charge should , have been dismissed. The requirement of dismissal, however, is not absolute. Section 3162(a)(1) provides: If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. (emphasis added). Section 3161(h) provides for certain periods of excludable delay that extend the thirty-day period of § 3161(b). Most relevant of these tolling provisions to this case are § 3161(h)(1) and § 3161(h)(1)(F). They provide: (h) The following periods of delay shall be excluded in computing the time within which an information or indictment must be filed, ...: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to— (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion; ■_ Giving plain, ordinary" }, { "docid": "21235796", "title": "", "text": "at 1162 (Case in which a group of Haitian refugees were detained as illegal aliens for almost nine months prior to indictment. The aliens, however, were indicted on federal charges of (1) conspiring to bring illegal aliens into the United States; and (2) transporting or attempting to transport aliens into the country. The Eleventh Circuit held that the Speedy Trial Act did not start running upon the initial detention because the arrest was not \"in connection with” the charges in the indictment.); Okuda, 675 F.Supp. at 1555 (similarly distinguishing Reme). . Section 3162(a)(1) provides: If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of reprosecution on the administration of this chapter and on the administration of justice. As this section states that it concerns the case \"of any individual against whom a complaint has been filed”, the Eleventh Circuit has held that it \"establishes that Congress intended the provisions of the Act to apply only if an individual was formally charged with an offense” and that no formal arrest occurred in a case where a defendant was temporarily taken into custody and later released. United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir .1983). Sayers, however, did not involve the situation at hand where a defendant is placed under continuous physical detention. Moreover, the Sayers Court implied that such continuous detention would implicate the Act, stating that \"The district court logically concluded that until an individual is being held, either physically or legally, to answer to a charge, there is no circumstance upon which the purpose of the Act could" }, { "docid": "16139345", "title": "", "text": "whether the inmate should be criminally prosecuted. He referred Wearing’s case on May 8, 2013, and the United States Attorney’s Office accepted the referral that same day. On March 20, 2015, the court issued an order denying the motion to dismiss the indictment based on the sufficiency of the indictment, concluding the indictment was sufficient to provide notice to the grand jury of what charge it was considering and to Wearing of what charge he faced. On April 21, 2015, the court denied the motion to dismiss based on speedy trial grounds. The district court ruled that placement in administrative segregation was not an arrest for purposes of the Speedy Trial Act and, utilizing the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that any delay had not violated Wearing’s constitutional right to a speedy trial. II. On appeal, Wearing renews his speedy trial arguments. Wearing first alleges the government violated his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§3161-3174. Wearing contends the district court erred by not dismissing the indictment because the government failed to indict him within thirty days of his “arrest” — that is, when he was placed in administrative segregation' on April 24, 2013 for possessing a shank.Nee 18 U.S.C. § 3161(b) (“[A]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”). Section 3162(a) of the Speedy Trial Act provides that “[i]f, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ,.. such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” In reviewing a district court’s denial of a motion to dismiss an indictment based on the Speedy Trial Act, we review the district court’s factual findings for clear error and its legal conclusions" }, { "docid": "14679900", "title": "", "text": "United States v. Mentz, 840 F.2d at 326. However, the time between May 3, 1988 and May 8, 1988 is also included in the seventy-day calculation. This adds six (6) more days. The total number of non-excludable days between arraignment and being brought to trial (entering of the guilty plea) is thus 8 + 5 + 11 + 13 + 6 = 43 days. Under the terms of the Speedy Trial Act, Blackmon and Haywood were not entitled to dismissal of their indictment. BLACKMON’S PRE-INDICTMENT DELAY Petitioner Blackmon likewise argues that he is entitled to dismissal of the indictment because he was not indicted within thirty days of his September 9, 1987 arrest. 18 U.S.C. § 3161(b) provides: Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If the time limit of 18 U.S.C. § 3161 is exceeded, “such charge against that individual contained in [the] complaint shall be dismissed or otherwise dropped.” 18 U.S. C. § 3162(a)(1). Blackmon was arrested on Friday, September 9, 1987 by narcotics officers of the Metropolitan Memphis Police Department; at that time, he was also questioned by officers of the Federal Bureau of Investigation. A federal complaint was filed on September 10, 1987 and he was indicted on September 13, 1987. A defendant is not “arrested” for purposes of the Speedy Trial Act until formal federal charges are pending. United States v. Sanchez, 722 F.2d 1501, 1508 (11th Cir.1984); see United States v. Varella, 692 F.2d 1352, 1358 (11th Cir.1982). An “arrest” refers to the point at which a defendant is charged with the crime; therefore, a defendant is not “arrested” until a formal complaint or formal charge is issued. United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir.1983). See also United States v. Alfarano, 706 F.2d 739, 741 (6th Cir.1983) (protections of Speedy Trial Act triggered once accused is arrested and served with federal complaint). Regardless of the degree of federal involvement in" }, { "docid": "23549056", "title": "", "text": "it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see also United States v. Myers, 280 F.3d 407, 415 (4th Cir.), cert. denied, 537 U.S. 852, 123 S.Ct. 53, 154 L.Ed.2d 84 (2002). Finally, we review de novo a claim that charges in an indictment are multiplicitous. United States v. Stewart, 256 F.3d 231, 247 (4th Cir.), cert. denied, 534 U.S. 1049, 122 S.Ct. 633, 151 L.Ed.2d 553 (2001). III. A. Leftenant first contends that the district court was obliged to dismiss the indictment because it was returned more than thirty days after his arrest, a delay that he maintains contravened the speedy indictment provision of the STA, 18 U.S.C. § 3161(b). The Government disagrees, contending that the filing of the information within the thirty day period of 18 U.S.C. § 3161(b) satisfied the STA’s speedy indictment requirement. As explained below, the prosecution of Leften-ant did not contravene the STA, but our resolution of this issue is premised on grounds other than those suggested by the Government. 1. The STA requires that a defendant be indicted within thirty days of arrest. See 18 U.S.C. § 3161(b); United States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002) (per curiam). Specifically, § 3161(b) provides that: “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested 'or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). Importantly, the STA does not limit the Government’s ability to charge a defendant with offenses unrelated to the charge underlying his arrest. To the contrary, “[a]n unrelated charge can be brought at any time.” United States v. Heldt, 745 F.2d 1275, 1279 n. 9 (9th Cir.1984); see also United States v. Mosquera, 95 F.3d 1012, 1015 (11th Cir.1996) (per curiam) (“[T]he Speedy Trial Act does not guarantee that an arrested individual indicted within thirty days of his arrest must, in that thirty-day period, -be- indicted for every crime known to the government, failing which he may never" } ]

[ { "docid": "23215968", "title": "", "text": "656, 55 L.Ed. 890 (1911); New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196, 1201 (1st Cir. 1979). Obviously the source from which the sums sought by the plaintiff must come is the most important single factor in determining whether the Eleventh Amendment bars federal jurisdiction. See Edelman v. Jordan, 415 U.S. at 668, 94 S.Ct. at 1358; Hutchison v. Lake Oswego School District No. 7, 519 F.2d 961, 966 (9th Cir. 1975). Other significant factors include whether the defendant entity performs an essential government function and the manner in which the entity is regarded by the law of the relevant state. See 519 F.2d at 966-68. Whether state law treats the entity as the state, permits it to sue and be sued, permits it to take property in its own name, or permits it to conduct itself substantially independently of the state are relevant aspects of the state law that must be considered. The district court properly applied these factors in reaching the conclusion that this suit against the Arizona Board of Regents and Arizona State University was not cognizable in a federal court. The Arizona Board of Regents is treated as the State of Arizona under Arizona law. See Arizona Board of Regents v. Arizona York Refrigeration Co., 115 Ariz. 338, 565 P.2d 518 (1977). Its funds are state funds. The fact that such funds may have been derived from insurance proceeds does not alter this conclusion. Id. Markowitz v. United States, 650 F.2d 205 (9th Cir. 1981). In support of its holding the district court observed as follows: Analysis of the statutory scheme governing the Board of Regents also weighs in favor of a finding of Eleventh Amendment immunity. The Board of Regents consists of eight members appointed by the governor, and the governor and the state superintendent of public instruction serve as ex officio members. Ariz.Rev. Stat.Ann. § 15-721(A) (1972). The powers and duties of the Board of Regents are regulated by the state legislature. Id. at § 15-725. In addition, the Board of Regents is required to submit a detailed report" } ]

[ { "docid": "22669261", "title": "", "text": "g., Edelman v. Jordan, 415 U. S. 651, 673 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we have required an unequivocal expression of congressional intent to “overturn the constitutionally guaranteed immunity of the several States.” Quern v. Jordan, 440 U. S. 332, 342 (1979) (holding that 42 U. S. C. § 1983 does not override States’ Eleventh Amendment immunity). Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. As Justice Marshall well has noted, “[b]e- cause of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.” Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 294 (1973) (concurring in result). Accordingly, in deciding this case we must be guided by “[t]he principles of federalism that inform Eleventh Amendment doctrine.” Hutto v. Finney, 437 U. S. 678, 691 (1978). B This Court’s decisions thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Employees, supra, at 280. There may be a question, however, whether a particular suit in fact is a suit against a State. It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e. g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U. S. 781" }, { "docid": "22610827", "title": "", "text": "of Universities of the Department of Education is established by the Florida Education Code as a part of the State University System. Fla. Stat. §240.2011 (1981). The Board consists of the Commissioner of Education and 12 citizens appointed by the Governor. § 240.207. The Board has general supervisory authority over the State University System. § 240.209. Among its duties are the appointment of university presidents, the review of budget requests of each university in the state system, the preparation of an aggregated budget for the State University System, the development of a master plan, and the establishment of a systemwide personnel classification and pay plan. Ibid. The Board is an agency of the State of Florida. § 216.011. See Relyea v. State, 385 So. 2d 1378 (Fla. App. 1980). It may claim the defense of sovereign immunity in suits under state law. See ibid. Numerous Courts of Appeals have held state universities or state Boards of Regents immune from suit in federal court by reason of the Elev enth Amendment. See, e. g., Rutledge v. Arizona Board of Regents, 660 F. 2d 1345, 1349 (CA9 1981); Brennan v. University of Kansas, 451 F. 2d 1287 (CA10 1971); Ronwin v. Shapiro, 657 F. 2d 1071 (CA9 1981). See, e. g., Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147, 150 (1981); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276-277 (1959) (“The conclusion that there has been a waiver of immunity will not be lightly inferred. . . . And where a public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts”); Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946) (language in state statute providing for suit in “any court of competent jurisdiction” will not be understood as a waiver of the Eleventh Amendment); Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945) (same); Great Northern Life Insurance Co." }, { "docid": "22610804", "title": "", "text": "be sued was limited to contract actions and, unlike the instant provision, did not extend to “all courts of law and equity.” The same is true of the interstate compact involved in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959). The decision in Kennecott Copper Corp. v. Tax Comm’n, 327 U. S. 573 (1946), which involved a statute providing for suit in “any court of competent jurisdiction,” turned on the incongruity of federal courts’ interpreting state tax laws and the fact that “Utah employs explicit language to indicate, in other litigation, its consent to suits in federal courts.” Id., at 579. Thus, while I do not object to the Court’s leaving the Eleventh Amendment issue for further consideration by the lower courts — at least where, as here, there is no logical priority in resolving Eleventh Amendment immunity before exhaustion — I find the issue sufficiently clear to be answered here and now. The statute means what it says. Justice Powell, with whom The Chief Justice joins as to Part II, dissenting. The Court holds that the limitations on federal judicial power embodied in the Eleventh Amendment and in the doctrine of sovereign immunity are not jurisdictional. I con sider this holding to be a serious departure from established constitutional doctrine. I dissent also from the Court’s rejection of the rule of “flexible” exhaustion of state administrative remedies developed and stated persuasively by the Court of Appeals for the Fifth Circuit, sitting en banc. In disagreeing with the 17 judges of the Court of Appeals who adopted the flexible exhaustion principle, this Court places mistaken reliance on the Civil Rights of Institutionalized Persons Act, 42 U. S. C. § 1997 et seq. (1976 ed., Supp. IV). I disagree with both portions of the Court’s holding and therefore dissent. I. The Eleventh Amendment. A In this “reverse discrimination” action, petitioner, an employee of the Florida International University, brought suit under 42 U. S. C. § 1983 against the Board of Regents of the State of Florida. She did not name the individual Regents as defendants. She sued for $500,000" }, { "docid": "22610838", "title": "", "text": "whether the damages come directly from the State’s general fund or from some other state fund. See Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946) (segregated funds of the State Tax Commission are state moneys subject to the Eleventh Amendment). Moreover, the fact that the Board is a corporate entity under state law does not permit application of the rule in Ex parte Young to the Board itself — as if the Board were an official. This Court repeatedly has held the Eleventh Amendment to bar suit against such state corporate agencies. See Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981); Great Northern Insurance Co. v. Read, supra; Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945); Kennecott Copper Corp. v. State Tax Comm’n, supra. Hopkins v. Clemson Agricultural College, 221 U. S. 636 (1911), is not to the contrary. In that case suit was brought against astate college-in state court to recover damages caused by the college’s construction of a dyke. Although the Court discussed the Eleventh Amendment in some detail, there was simply no Eleventh Amendment question in that case. It was clear before Hopkins that the Eleventh Amendment did not apply to bar review in this Court of any federal question presented in a suit against a State in state court. See Chandler v. Dix, 194 U. S. 590, 592 (1904). Cf. University of California Regents v. Bakke, 438 U. S. 265 (1978). Moreover, the Hopkins Court did not consider the college’s activities in that case to be governmental. 221 U. S., at 647. In short, no Eleventh Amendment question was presented to the Court. The opinion in Hopkins has never been cited by this Court for the proposition that the Eleventh Amendment is no bar to suit against a state corporate agency in federal court. See Florida Dept. of Health v. Florida Nursing Home Assn., supra; Alabama v. Pugh, 438 U. S. 781 (1978); Parden v. Terminal R. Co., 377 U. S. 184 (1964). “[I]n all the cases in which the" }, { "docid": "18273827", "title": "", "text": "be lightly inferred. Ronwin v. Shapiro, supra, 657 F.2d at 1073; Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 1977), rev’d in part and aff’d in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Although in Stone v. Arizona Highway Comm’n, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished sovereign immunity from tort claims, consent to be sued in state court does not necessarily imply consent to be sued in federal court. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 576-80, 66 S.Ct. 745, 90 L.Ed. 862 (1946). There is no indication in the Stone opinion that Arizona intended to consent to anything more than suit in its own courts. Ronwin v. Shapiro, supra, 657 F.2d at 1074. The Arizona legislature clearly has the power to waive the State’s Eleventh Amendment immunity, but the question here is whether it has exercised such power. The legislature has enacted a provision which allows the Board to “sue and be sued.” Ariz.Rev.Stat. § 15-724. This statute does not serve to waive an Eleventh Amendment defense, however, since the phrase “sue and be sued” has been limited to waiving immunity in the state, and not the federal courts. See Ronwin v. State Bar of Ariz., 663 F.2d 914, 922 n.10 (9th Cir. 1981); Soni v. Board of Trustees of Univ. of Term. 513 F.2d 347, 352-53 (6th Cir. 1975) and cases cited therein. The legislature has also enacted a general procedure for bringing contract or negligence suits against the State. Ariz.Rev.Stat. §§ 12-821 to 826. Section 12-821 contemplates that as a prerequisite to filing a court action, a “claim” must be filed with and disallowed by the state agency whose action or non-action gave rise to the liability creating event. State v. Brooks, 23 Ariz. App. 463, 466-67, 534 P.2d 271 (1975). In this case it appears that this section has not been complied with since plaintiff never presented a claim requesting any form of relief from" }, { "docid": "22536159", "title": "", "text": "Northern Life Ins. Co. v. Read, 322 U. S. 47, 54 (1944). See also Pennhurst State School and Hospital v. Halderman, 465 U. S., at 99 (State’s consent to suit must be \"unequivocally expressed”). Thus, a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Smith v. Reeves, 178 U. S. 436, 441—445 (1900). Nor does it consent to suit in federal court merely by stating its intention to “sue and be sued,” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U. S. 147, 149-150 (1981) (per curiam), or even by authorizing suits against it “‘in any court of competent jurisdiction,’ ” Kennecott Copper Corp. v. State Tax Common, 327 U. S. 573, 577-579 (1946). We have even held that a State may, absent any contractual commitment to the contrary, alter the conditions of its waiver and apply those changes to a pending suit. Beers v. Arkansas, supra. There is no suggestion here that respondent Florida Prepaid expressly consented to being sued in federal court. Nor is this a ease in which the State has affirmatively invoked our jurisdiction. Rather, petitioner College Savings and the United States both maintain that Florida Prepaid has \"impliedly” or “constructively” waived its immunity from Lanham Act suit. They do so on the authority of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964)— an elliptical opinion that stands at the nadir of our waiver (and, for that matter, sovereign-immunity) jurisprudence. In Parden, we permitted employees of a railroad owned and operated by Alabama to bring an action under the Federal Employers’ Liability Act (FELA) against their employer. Despite the absence of any provision in the statute specifically referring to the States, we held that the Act authorized suits against the States by virtue of its general provision subjecting to suit \"[e]very common carrier by railroad . . . engaging in commerce between . . . the several States,” 45 U. S. C. §51 (1940 ed.). We further held that Alabama had waived" }, { "docid": "22610828", "title": "", "text": "Arizona Board of Regents, 660 F. 2d 1345, 1349 (CA9 1981); Brennan v. University of Kansas, 451 F. 2d 1287 (CA10 1971); Ronwin v. Shapiro, 657 F. 2d 1071 (CA9 1981). See, e. g., Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147, 150 (1981); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276-277 (1959) (“The conclusion that there has been a waiver of immunity will not be lightly inferred. . . . And where a public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts”); Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946) (language in state statute providing for suit in “any court of competent jurisdiction” will not be understood as a waiver of the Eleventh Amendment); Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945) (same); Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 54 (1944) (“a clear declaration of the state’s intention to submit its fiscal problems to other courts than those of its own creation must be found”); Jagnandan v. Giles, 538 F. 2d 1166, 1177 (CA5 1976). Cf. Edelman v. Jordan, supra, at 673 (“In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction' ”). It is difficult to reconcile' the Court’s consistent requirement of an express waiver with the approach advocated by Justice White. See ante, at 519, n. At oral argument here counsel for respondent stated that the Florida Legislature had not waived the Eleventh Amendment and had waived the defense of sovereign immunity “only in selected tort cases.” Tr. of Oral Arg. 26. See Bragg v. Board of Public Instruction, 36 So. 2d 222 (Fla. 1948) (“The mere fact that the Board of" }, { "docid": "2225069", "title": "", "text": "scrutinized three state-related universities and concluded that they were not state instrumentalities. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974), appeal dismissed for want of an appealable order, 506 F.2d 355 (3d Cir. 1974) (University of Pittsburgh, Temple University, Pennsylvania State University)- We are uncertain whether the University of Tennessee is a state instrumentality protected by the eleventh amendment. The record before us contains little data on the University’s financial relationship with the State of Tennessee, and the Tennessee cases and statutory materials do not compel a conclusion one way or the other. Assuming, without deciding, that this action is a suit against the State within the meaning of the eleventh amendment, we believe that Tennessee has waived the immunity by consenting to suits against the University of Tennessee. As noted above, the University’s original charter provides that it may “sue and be sued, plead and be impleaded, in any court of law or equity in this State or elsewhere.” We are not unmindful that a waiver of a constitutional right must appear clearly and may not be lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). For example, it seems generally agreed that a state’s consent to be sued in its own courts does not necessarily imply consent to be sued in federal court. See Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557, 558 (5th Cir. 1964). We are also aware that when a “public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465-66 & n. 8, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Board of Regents of the University of Nebraska v. Dawes, 370 F.Supp. 1190, 1193 (D.Neb.1974). In" }, { "docid": "22536158", "title": "", "text": "purported authority of §5 (viz., prohibition of States’ sovereign-immunity claims, which are not in themselves violations of the Fourteenth Amendment) was genuinely necessary to prevent violation of the Fourteenth Amendment. We turn next to the question whether Florida’s sovereign immunity, though not abrogated, was voluntarily waived. IV We have long recognized that a State’s sovereign immunity is “a personal privilege which it may waive at pleasure.” Clark v. Barnard, 108 U. S., at 447. The decision to waive that immunity, however, “is altogether voluntary on the part of the sovereignty.” Beers v. Arkansas, 20 How. 527, 529 (1858). Accordingly, our “test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hospital v. Scanlon, 478 U. S. 234, 241 (1985). Generally, we will find a waiver either if the State voluntarily invokes our jurisdic tion, Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906), or else if the State makes a \"clear declaration” that it intends to submit itself to our jurisdiction, Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 54 (1944). See also Pennhurst State School and Hospital v. Halderman, 465 U. S., at 99 (State’s consent to suit must be \"unequivocally expressed”). Thus, a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Smith v. Reeves, 178 U. S. 436, 441—445 (1900). Nor does it consent to suit in federal court merely by stating its intention to “sue and be sued,” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U. S. 147, 149-150 (1981) (per curiam), or even by authorizing suits against it “‘in any court of competent jurisdiction,’ ” Kennecott Copper Corp. v. State Tax Common, 327 U. S. 573, 577-579 (1946). We have even held that a State may, absent any contractual commitment to the contrary, alter the conditions of its waiver and apply those changes to a pending suit. Beers v. Arkansas, supra. There is no suggestion here that respondent Florida Prepaid expressly" }, { "docid": "23324054", "title": "", "text": "waiver of a constitutional right must appear clearly and may not be lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347 (1974). For example, it seems generally agreed that a state’s consent to be sued in its own courts does not necessarily imply consent to be sued in federal court. See Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557, 558 (5th Cir. 1964). We are also aware that when a “public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465-66 & n.8, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Board of Regents of the University of Nebraska v. Dawes, 370 F.Supp. 1190, 1193 (D.Neb. 1974). In this case, however, the University of Tennessee was created, only a few years after the ratification of the eleventh amendment, with the unrestricted right to sue and to be sued “in any court of law or equity.” We see no indication that this sweeping consent was intended to be limited to suits brought in the state courts. To the contrary, by its terms the consent is general and purports to apply to any court and to any type of suit. Article 1, § 17 of the Constitution of Tennessee provides that “Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” This language originated with the State’s first Constitution of 1796 and was carried forward into the Constitutions of 1834 and 1870. The Legislature of Tennessee has consented that the University may sue and be sued. The power to sue grants to the University the right to recover a money judgment. Consent to be sued inescapably subjects the University" }, { "docid": "5651678", "title": "", "text": "with such clarity as to amount to a waiver of Eleventh Amendment protection. As the Supreme Court stated in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959): [W]here a public instrumentality is created with the right “to sue and be sued” that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts. Id. at 277, 79 S.Ct. at 787. In the statutes concerning Mississippi State University, there is no provision comparable to section 5 of the 1878 Act. Only § 37-113-3 could be construed as referring back to any form of consent that may have been present in prior acts. In referring to the 1878 Act, this section states in part: [Mississippi State University] shall continue to exist as a body-politic and corporate, . . . with all its property and the franchises, rights, powers, and privileges heretofore conferred on it by law, or properly incident to such a body and necessary to accomplish the purpose of its ereation[.] This provision likewise lacks the clarity needed in order to infer the state’s consent to be sued. As the Supreme Court has often stated, Th[e] cases declare the rule that clear declaration of a State’s consent to suit against itself in the federal court on fiscal claims is required. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577, 66 S.Ct. 745, 747, 90 L.Ed. 862 (1946). Clear expression is lacking here. Our holding that there is no Mississippi statute consenting to suit is buttressed by state decisional law. Smith v. Doehler Metal Furniture Co., supra, 195 Miss. 538, 15 So.2d 421 (1943), involved Mississippi Southern College, a sister school of M.S.U. but subject to the same statutory control and Board supervision. The state Attorney General argued that the school was an agency of the state and that there was no statutory consent for the suit. The Mississippi Supreme Court agreed. That an arm or agency of the state cannot be sued except by express statutory or constitutional" }, { "docid": "18273826", "title": "", "text": "Arizona York Refrigeration Co., 115 Ariz. 338, 565 P.2d 518, 520 (1977). In addition, it appears that the Board is as much an “alter ego” of the State as is the Arizona Coliseum and Exposition Center Board, Ariz.Rev.Stat. 3-1001 to 1012, a “political entity” which has been allowed to raise an Eleventh Amendment defense. Mills Music, Inc. v. Arizona, supra, 591 F.2d at 1282. These considerations lead the Court to conclude that the Board is an arm or instrumentality of the State under the Eleventh Amendment. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349-50 (9th Cir. 1981); Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981); accord, e.g., Vaughn v. Regents of Univ. of Cal., supra, 504 F.Supp. at 1352-54; An-Ti Chai v. Michigan Technological Univ., supra, 493 F.Supp. at 1162-64; Henry v. Texas Tech Univ., 466 F.Supp. 141, 146 (N.D.Tex.1979). As an arm or instrumentality of the State the Board is immune from suit under the Eleventh Amendment unless it has waived its immunity, and such a waiver is not to be lightly inferred. Ronwin v. Shapiro, supra, 657 F.2d at 1073; Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 1977), rev’d in part and aff’d in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Although in Stone v. Arizona Highway Comm’n, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished sovereign immunity from tort claims, consent to be sued in state court does not necessarily imply consent to be sued in federal court. Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 576-80, 66 S.Ct. 745, 90 L.Ed. 862 (1946). There is no indication in the Stone opinion that Arizona intended to consent to anything more than suit in its own courts. Ronwin v. Shapiro, supra, 657 F.2d at 1074. The Arizona legislature clearly has the power to waive the State’s Eleventh Amendment immunity, but the question here is whether it has exercised such power. The legislature has enacted a" }, { "docid": "2225070", "title": "", "text": "and may not be lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). For example, it seems generally agreed that a state’s consent to be sued in its own courts does not necessarily imply consent to be sued in federal court. See Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557, 558 (5th Cir. 1964). We are also aware that when a “public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465-66 & n. 8, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Board of Regents of the University of Nebraska v. Dawes, 370 F.Supp. 1190, 1193 (D.Neb.1974). In this case, however, the University of Tennessee was created, only a few years after the ratification of the eleventh amendment, with the unrestricted right to sue and to be sued “in any court of law or equity.” We see no indication that this sweeping consent was intended to be limited to suits brought in the state courts. To the contrary, by its terms the consent is general and purports to apply to any court and to any type of suit. Article 1, § 17 of the Constitution of Tennessee provides that “Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” This language originated with the State’s first Constitution of 1796 and was carried forward into the Constitutions of 1834 and 1870. The Legislature of Tennessee has consented that the University may sue and be sued. The power to sue grants to the University the right to recover a money judgment. Consent to be sued inescapably subjects the University to the hazard of having" }, { "docid": "14395744", "title": "", "text": "property taxes. The entire revenue derived from these special tax levies “or so much thereof as may be necessary” are appropriated to the Trustees for the purpose of constructing, equipping and improving the state colleges. C.R.S. 124-7-13(2). The state colleges and the board of trustees exist at the pleasure of the state legislature. The essential nature of this action is for the breach of a contract which the board had the statutory power to make on behalf of the State of Colorado. This is a suit on an alleged state debt, and as such, falls precisely within the meaning of the 11th Amendment. Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842. This immunity, however, may be waived. Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804; Ford Motor Co. v. Dept. of Treasury, supra; Great Northern Life Ins. Co. v. Read, supra; State of Missouri v. Fiske, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145. Cf. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, reh. denied 377 U.S. 1010, 84 S.Ct. 1903, 12 L.Ed.2d 1057. The waiver of immunity will not be lightly inferred. Petty v. Tennessee-Missouri Bridge Comm’n, supra; Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742; Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862. A waiver of immunity, or consent to be sued in the state courts, will not constitute a waiver as to actions brought in the federal courts unless that intent clearly appears. Kennecott Copper Corp. v. State Tax Comm’n, supra; Great Northern Life Ins. Co. v. Read, supra; Chandler v. Dix, 194 U.S. 590, 24 S.Ct. 766, 48 L.Ed. 1129. Cf. Oklahoma Real Estate Comm’n v. Nat’l B. & P. Exchg., 10 Cir., 229 F.2d 205; State Tax Comxn’n v. Kennecott Copper Corp., 10 Cir., 150 F.2d 905, aff’d 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862; Stamey v. State Highway Comm’n of Kansas, D.C.Kan., 76 F.Supp. 946. We find no clear" }, { "docid": "22610826", "title": "", "text": "to the argument that “the Eleventh Amendment precludes subject matter jurisdiction over plaintiff’s complaint.” Brief for Defendant-Appel-lee in No. 79-2965 (CA5), p. 17. A lengthy statutory addendum was attached in support of the arguments advanced in this section of the brief. After the case was scheduled for rehearing en bane, the parties filed short — i. e., 4- and 10-page — supplemental briefs to be considered in addition to the main briefs already submitted to the Court of Appeals. The supplemental briefs did not add to the discussion of the Eleventh Amendment issue. But the question was placed before the Court of Appeals en banc, as it had been placed before the panel, through the thorough discussion in the main briefs. This Court’s explanation for not addressing the Eleventh Amendment issue is that it was not considered below. See ante, at 515-516, n. 19. But contrary to the implication in the Court’s explanation, the issue — as shown here — was urged by the Board and argued here. The Board of Regents of the Division of Universities of the Department of Education is established by the Florida Education Code as a part of the State University System. Fla. Stat. §240.2011 (1981). The Board consists of the Commissioner of Education and 12 citizens appointed by the Governor. § 240.207. The Board has general supervisory authority over the State University System. § 240.209. Among its duties are the appointment of university presidents, the review of budget requests of each university in the state system, the preparation of an aggregated budget for the State University System, the development of a master plan, and the establishment of a systemwide personnel classification and pay plan. Ibid. The Board is an agency of the State of Florida. § 216.011. See Relyea v. State, 385 So. 2d 1378 (Fla. App. 1980). It may claim the defense of sovereign immunity in suits under state law. See ibid. Numerous Courts of Appeals have held state universities or state Boards of Regents immune from suit in federal court by reason of the Elev enth Amendment. See, e. g., Rutledge v." }, { "docid": "14898452", "title": "", "text": "of the state’s constitutional immunity must be clear and is not to be lightly inferred. Edelman v. Jordan, 415 U.S. at 678, 94 S.Ct. at 1363. Waiver may only be found where the waiver is express or the inference of waiver overwhelming. Id. Further, waiver for purposes of suit in state courts does not necessarily waive immunity for actions in federal courts. Murray v. Wilson Distilling Co., 213 U.S. 151, 172, 29 S.Ct. 458, 465, 53 L.Ed. 742 (1909). See Brennan v. Univ. of Kansas, 451 F.2d 1287, 1290 (10th Cir. 1971). “[W]here a public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm., 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959). The fixing of venue in Texas counties indicates strongly that the intended waiver applied to state court proceedings. In this way, the statute contrasts sharply with that relied on in Soni v. Board of Trustees of the Univ. of Tenn., 513 F.2d 347 (6th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) which provided that the trustees “could be sued in any court of law or equity in this state or elsewhere.” (Emphasis added). See Long v. Richardson, 525 F.2d 74, 76-79 (6th Cir. 1975), and Jagnandan v. Giles, 538 F.2d at 1177 (comparing Soni). See also, An-ti Chai v. Michigan Tech College, 493 F.Supp. 1137, 1162 (W.D.Mich. 1980); Board of Regents v. Dawes, 370 F.Supp. 1190, 1191-96 (D.Neb.1974). Accordingly, the district court’s reliance on this statute to support a waiver of the eleventh amendment bar, was erroneous. The district court’s holding that the eleventh amendment does not bar suit against SFA is thus left to rely on one factor: that payment of an award can be made without resort to general revenues of the state or legislative appropriation. See Edelman v. Jordan, 415 U.S. at 664-65, 94 S.Ct. at 1356-57. In making this finding," }, { "docid": "23324053", "title": "", "text": "Constitution. In addition, a federal district court recently scrutinized three state-related universities and concluded that they were not state instrumentalities. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974), appeal dismissed for want of an appealable order, 506 F.2d 355 (3d Cir. 1974) (University of Pittsburgh, Temple University, Pennsylvania State University). We are uncertain whether the University of Tennessee is a state instrumentality protected by the eleventh amendment. The record before us contains little data on the University’s financial relationship with the State of Tennessee, and the Tennessee cases and statutory materials do not compel a conclusion one way or the other. Assuming, without deciding, that this action is a suit against the State within the meaning of the eleventh amendment, we believe that Tennessee has waived the immunity by consenting to suits against the University of Tennessee. As noted above, the University’s original charter provides that it may “sue and be sued, plead and be impleaded, in any court of law or equity in this State or elsewhere.” We are not unmindful that a waiver of a constitutional right must appear clearly and may not be lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347 (1974). For example, it seems generally agreed that a state’s consent to be sued in its own courts does not necessarily imply consent to be sued in federal court. See Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557, 558 (5th Cir. 1964). We are also aware that when a “public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465-66 & n.8, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Board of Regents of the University of Nebraska v. Dawes, 370 F.Supp." }, { "docid": "22610803", "title": "", "text": "S. 496 (1941). On this understanding, I join all but Part III-B of the opinion of the Court. In my view, this case does not present a serious Eleventh Amendment issue. The Florida statute authorizing suits against the Board of Regents, Fla. Stat. § 240.205 (1981), is clear on its face. I see no reason to read a broad waiver to sue and be sued in “all courts of law and equity” as meaning all but federal courts. Nor am I aware of anything in Florida law that suggests a more limited meaning was intended than indicated by the unequivocal terms of the statute. Certainly, none of our cases have gone so far as to hold that federal courts must be expressly mentioned for an effective Eleventh Amendment waiver. The statutes at issue in cases recited by Justice Powell, post, at 522-523, n. 5, presented more equivocal embodiments of state intent. For example, in Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam), the authorization to sue and be sued was limited to contract actions and, unlike the instant provision, did not extend to “all courts of law and equity.” The same is true of the interstate compact involved in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959). The decision in Kennecott Copper Corp. v. Tax Comm’n, 327 U. S. 573 (1946), which involved a statute providing for suit in “any court of competent jurisdiction,” turned on the incongruity of federal courts’ interpreting state tax laws and the fact that “Utah employs explicit language to indicate, in other litigation, its consent to suits in federal courts.” Id., at 579. Thus, while I do not object to the Court’s leaving the Eleventh Amendment issue for further consideration by the lower courts — at least where, as here, there is no logical priority in resolving Eleventh Amendment immunity before exhaustion — I find the issue sufficiently clear to be answered here and now. The statute means what it says. Justice Powell, with whom The Chief Justice joins as to Part II, dissenting. The" }, { "docid": "22863568", "title": "", "text": "the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a State for services performed in withholding State income taxes from the pay of the employees of the agency.” See Brief for Appellee 13-15. In fact, the Postal Service’s regulations provide for withholding of employees’ wages when garnished by court order, United States Postal Service, Financial Management Manual § 431.1(g) (1978); see 39 CFR § 211.2(a)(2) (1983). Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); United States v. Shaw, 309 U. S. 495, 501 (1940). See also Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 280-281 (1959); Brady v. Roosevelt S.S. Co., 317 U. S. 575, 580 (1943). See generally National City Bank of New York v. Republic of China, 348 U. S. 356, 359 (1955) (“[E]ven the immunity enjoyed by the United States as territorial sovereign is a legal doctrine which has not been favored by the test of time. It has increasingly been found to be in conflict with the growing subjection of governmental action to the moral judgment”). Justice Frankfurter, writing for a unanimous Court in the Term prior to Burr, foreshadowed Burr’s approach to waivers of sovereign immunity: “Congress has provided for not less than forty of such corporations discharging governmental functions, and without exception the authority to sue-and-be-sued was included. Such a firm practice is partly an indication of the present climate of opinion which has brought governmental immunity from suit into disfavor, partly it reveals a definite attitude on the part of Congress which should be given hospitable scope.” Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 390-391 (1939) (footnotes omitted). Chapter 171 of Title 28 governs procedure under the Federal Tort Claims Act, 28 U. S. C. §§2671-2680. The nearly universal conclusion of the lower federal courts has been that the Postal Reorganization Act constitutes a waiver of sovereign immunity. See Insurance Co. of North America" }, { "docid": "14898451", "title": "", "text": "on the status of the defendant — either it is an arm of the state, or it is not. The proposition that a violation of constitutional rights might justify a contraction of the eleventh amendment has been flatly rejected by the Supreme Court. See Quern v. Jordan, 440 U.S. 332, 338-45, 99 S.Ct. 1139, 1143-47, 59 L.Ed.2d 358 (1979) holding that section 1983 did not abrogate the state’s eleventh amendment immunity. See also Jagnandan v. Giles, 538 F.2d 1166, 1182-86 (5th Cir. 1976). In the present case, the district court’s inquiry began by noting that under Texas law, the Board of Regents at the time of filing this suit, could sue and be sued in its own name. This was taken as a statutory waiver of sovereign immunity. The entire statute, now repealed, read: “The board may sue and be sued in the name of the University. Venue is in either Nacogdoches County or Travis County . . . [Legislative consent to suits against the university is granted.” Tex.Educ.Code Ann. § 101.18 (repealed). A waiver of the state’s constitutional immunity must be clear and is not to be lightly inferred. Edelman v. Jordan, 415 U.S. at 678, 94 S.Ct. at 1363. Waiver may only be found where the waiver is express or the inference of waiver overwhelming. Id. Further, waiver for purposes of suit in state courts does not necessarily waive immunity for actions in federal courts. Murray v. Wilson Distilling Co., 213 U.S. 151, 172, 29 S.Ct. 458, 465, 53 L.Ed. 742 (1909). See Brennan v. Univ. of Kansas, 451 F.2d 1287, 1290 (10th Cir. 1971). “[W]here a public instrumentality is created with the right ‘to sue and be sued’ that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts.” Petty v. Tennessee-Missouri Bridge Comm., 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959). The fixing of venue in Texas counties indicates strongly that the intended waiver applied to state court proceedings. In this way, the statute contrasts sharply with" } ]

[ { "docid": "7471624", "title": "", "text": "because the administrators were merely carrying-out the provisions of the plan as it then stood. American has supplied case law support for its position. In Stewart v. National Shopmen Pension Fund, 730 F.2d 1552 (D.C.Cir.1984), the District of Columbia Circuit discussed the appropriate meaning of “plan amendment.” Dealing with ERISA §§ 203(c)(1)(B) and 204(g), the court noted that: In both sections, the word “amendment” is used as a word of limitation. Congress did not state that any change would trigger the two provisions; it stated that any change by amendment would do so. The district court found, and the plaintiffs admit, that there was no “amendment” to the plan in the “technical” sense — i.e., an actual change in the provisions of the plan. True. All that happened was that § 2.09, a provision already incorporated into the plan, was applied. Actions authorized by the plan were carried out by the persons authorized to do so. 730 F.2d at 1561 (emphasis in original). In Stewart, the court was faced with a multiemployer pension fund. That pension fund specifically provided that if an employer’s participation in the fund should terminate, the fund’s trastees were empowered to cancel any portion of an employee’s pension which was based on the employee’s service with that particular employer prior to the time that the employer joined the multi-employer fund. While the Stewart decision is factually distinguishable from the present case, its commonsensical rule of law is nonetheless applicable here. In the context of this particular pension plan, the plan fiduciaries had the authority to change the actuarial assumptions “from time to time” in an effort to maintain actuarial equivalence. That is precisely what they did in this case. Therefore, we are unwilling to contort the plain meaning of “amendment” so that it includes the valid exercise of a provision which was already firmly ensconced in the pension document. In rebuttal, the Pilots argue that the Plan, by allowing this type of employer discretion in the setting of actuarial assumptions, was violative of ERISA. Therefore, they contend that we should disregard the Plan’s discretionary provision as" } ]

[ { "docid": "22251436", "title": "", "text": "adequately explained the basis for its decision, the court in McGarrah concluded that the claimant failed to meet his burden of presenting evidence that the irregularity raised serious doubts about the integrity of the decision making process. McGarrah, 234 F.3d at 1031. The court therefore held that the district court properly applied the deferential abuse of discretion standard. Id.; see also Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1198-99 (8th Cir.2002) (upholding the district court’s decision to review the decision for an abuse of discretion where the administrator’s “failure to provide [the beneficiaries] with timely notice of the denial and of their appeal rights” resulted in a procedural irregularity, but the irregularity did not “so undermine the decision of the plan administrator as to render it suspect”); Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820, 827-28 (8th Cir.2001) (stating that a “sliding-scale” standard of review is appropriate only if the claimant presents material, probative evidence demonstrating a palpable conflict of interest or serious procedural irregularity that caused a serious breach of fiduciary duty, and concluding that a less deferential standard of review was not warranted). Here, VPA’s response detailed the reasons for the denial of Jebian’s appeal. There is no evidence in the record that VPA relinquished the discretion granted it in the plan or that the untimeliness of its response raised doubts about the integrity of the decision-making process. “Ordinarily, a claimant who suffers because of a fiduciary’s failure to comply with ERISA’s procedural requirements is entitled to no substantive remedy.” Blau v. Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir.1985) (citation omitted); see also Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 807 (6th Cir.1996) (“Generally, the courts have recognized in E.R.I.S.A. cases that procedural violations entail substantive remedies only when some useful purpose would be served.”). As the majority observes, the question of whether procedural violations influence the standard of review was left open in Blau. In Blau, “there was no summary plan description, no claims procedure, and no provision to inform participants in writing of anything;” in short, the" }, { "docid": "16516333", "title": "", "text": "DIANE P. WOOD, Circuit Judge. This is the second time this court has had to consider the fractious battle between two former business partners over their firm’s pension plan. Once again, Ronald Spitz, the owner of a consulting firm and trustee of a 401(k) plan, is before this court in an Employee Retirement Income Security Act (ERISA) action against his former co-owner, Arthur Tepfer, and two of the firm’s employees, Frederic Fen-ster and Nolan Frank. The district court has again granted summary judgment in Spitz’s favor on all claims except for one, and it has awarded Spitz attorneys’ fees, collectable jointly from Tepfer, Frank and Fenster. This time, we affirm the district court’s judgment. I We will assume familiarity with the account set forth in our prior opinion in this matter and will repeat only what is necessary for this appeal. See Spitz v. Tepfer, 171 F.3d 443 (7th Cir.1999) (Spitz I). Spitz and Tepfer were equal co-owners of a retirement-plan-consulting business, Tepfer & Spitz, Ltd. (T & S). They were its sole directors and officers: Spitz was president and Tepfer was secretary. In January 1991, T & S established a 401 (k) profit-sharing plan (the Plan). Under the Plan, an employee could not vest until she had completed six years of service with T &S. On June 9, 1995, Tepfer left T & S, leaving quite a wake behind him. In addition to filing an unsuccessful suit in state court to force the dissolution of T & S, Tepfer formed another corporation, Tepfer Consulting Group, Ltd., where he served as president and sole shareholder. Fen-ster and Frank also left T & S to become employees of Tepfer Consulting Group. In addition, without telling Spitz, Tepfer executed a document entitled the Fourth Plan Amendment. This document was never adopted, ratified, or approved by the T & S Board of Directors. It generously provided that all participants in the T & S Plan would become 100% vested by January 1, 1995, and that all employees were guaranteed to receive their allocation of the T & S annual contribution to the Plan," }, { "docid": "16516344", "title": "", "text": "enough by itself to dismiss his interpretation of the Plan.” Id.; see also Mers v. Marriott Int'l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1020 (7th Cir.1998). Despite our discussion in Spitz I, Tepfer still offers no specific evidence of Spitz’s bias or abuse in this or any other determination he made as Plan administrator or as a trustee. The Participant Loan Program and Tep-fer’s loan were improper under both the SPD and the Plan. Tepfer must pay the final $100 of the $48,000 deposited in the registry of the district court to Spitz along with any interest accrued during this appeal. B. Statutory Penalties Fenster and Frank challenge the district court’s finding that T & S’s violation of 29 U.S.C. § 1024(b)(4)— through a seven-day delay in furnishing information — did not warrant any penalty. Before addressing the merits of Fenster’s and Frank’s argument, we note that they are incorrect to suggest that our review of this matter is de novo. It is within the district court’s discretion to determine whether to award statutory penalties, and the existence of that discretion means that our review is deferential. Anweiler v. American Elec. Power Serv. Corp., 3 F.3d 986, 990 (7th Cir.1993); Harsch v. Eisenberg, 956 F.2d 651, 662 (7th Cir.1992). A fine is not mandatory even upon a finding of a violation of § 1024(b)(4). Ames v. American Nat’l Can Co., 170 F.3d 751, 759-60 (7th Cir.1999). No one doubts that the district court had the power to hold the administrator “personally liable to such participant or beneficiary in the amount of up to $100 a day” under 29 U.S.C. § 1132(c) for the seven-day delay. The question, however, is whether it was an abuse of discretion to refrain from exercising that power here. The district court reasonably determined that no penalty was required because T & S’s failure to comply with the statute did not materially prejudice the defendants. See Harsch, 956 F.2d at 662. Although Fenster and Frank protest that no hearing was held on the issue, they have raised no factual dispute requiring a hearing." }, { "docid": "16516347", "title": "", "text": "terms. Although ERISA imposes fiduciary duties on employers with respect to the management of plan assets, it does not require an employer to act in a fiduciary capacity when the employer abolishes or amends a benefits plan (or in this case declines to abolish a plan). Senn v. United Dominion Indus., Inc., 951 F.2d 806, 817 (7th Cir.1992). After considering Fenster’s and Frank’s argument that the Plan had self-terminated, the district court found that it had no authority to grant relief because T & S’s failure formally to terminate the plan did not involve a fiduciary decision. Buckley Dement, Inc. v. Travelers Plan Adm’rs of Ill., Inc., 39 F.3d 784, 790 (7th Cir.1994); Adams v. Avondale Indus., Inc., 905 F.2d 943 (6th Cir.1990). The district court may have slightly misunderstood the point Fenster and Frank were making, but in the end it makes no difference. They recognize that the act of termination is not a fiduciary one, but they argue that the Plan ended according to its own terms and that their rights automatically vested. The question of whether a plan has terminated under its own provisions is a question of contract interpretation. Phillips v. Lincoln Nat’l Life Ins. Co., 978 F.2d 302, 311 (7th Cir.1992). As we noted in our discussion of Tepfer’s loan, the T & S Plan gives its administrator discretion to interpret its terms, and our review is therefore only to assess whether the determination here that the Plan was still in force is arbitrary and capricious. Herzberger v. Standard Ins. Co., 205 F.3d 327, 329 (7th Cir.2000). The SPD provides in Part XI(2) that the Plan will terminate upon “a complete discontinuance of contributions by your Employer.” Frank and Fenster point out that T & S is no longer contributing to the Plan, and that after December 31, 1995, T & S had no payroll, no new business, and a liquidation resolution. They also note that both Spitz and Tepfer have formed separate companies, and thus that there will not be any additional pension contributions. They reason that under the SPD, this must mean that" }, { "docid": "4032117", "title": "", "text": "directed in these opinions to the question of whether procedural violations require substantive remedies is not unique. Generally, the courts have recognized in E.R.I.S.A. cases that procedural violations entail substantive remedies only when some useful purpose would be served. Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2nd Cir.1995); Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1308 (9th Cir.1986); Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1096 (9th Cir.1985); Offutt v. Prudential Ins. Co., 735 F.2d 948, 950-51 (5th Cir.1984). In this case, the alleged defects in claim procedure do not warrant reversal of the trial court’s decision for two distinct, but related, reasons. First, this case can and should be distinguished from Wolfe and Vanderklok in that a remand in this case would represent a useless formality. In light of the plan language giving the fiduciary broad discretion to make coverage decisions, additional evidence is only pertinent to the extent that it shows that the fiduciary’s decision was an abuse of discretion. Such a conclusion is patently untenable in this case because much, if not all, the objective medical evidence supports the conclusion that plaintiff was not disabled. This is particularly troubling given the fact that plaintiffs attorneys have already sought additional examinations and opinions to no avail. Accordingly, the Court determines that remand is unnecessary in this case because it would represent a useless formality. Second, even apart from the needlessness of remedies, the procedure utilized to inform the plaintiff of the status of her claim and her rights of appeal substantially complied with E.R.I.S.A.’s procedural requirements. It is true that the procedures utilized in this case were technically deficient because the first letter did not meet the requirements of the statute and regulation, and the second letter was untimely (it being issued more than 90 days after the decision to deny the claim). Nevertheless, the procedures, when viewed in light of the myriad of communications between claimant, her counsel and the insurer, were sufficient to meet the purposes of Section 1133 in insuring that the claimant understood the reasons for the denial" }, { "docid": "13530771", "title": "", "text": "any documents required by Title I of the Employee Retirement Income Security Act of 1974 (E.R.I.S.A.) to be published, or kept by an employee benefit plan or certified to the administrator of any such plan, may be held criminally culpable. No differentiation is made between an employer or a fiduciary of an employee benefit or welfare fund. The rule of statutory construction in such a situation was stated by the Supreme Court in United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981): In determining the scope of a statute, we look first to its language. 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.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). “Whoever” clearly is sufficiently broad to include employers as well as fiduciaries. We conclude that appellants, as an “employer,” are included within the provisions of § 1027. The only relevant limitation found in § 1027 deals with the type of documents containing false statements. Although EBCC reports and MCRs are not required “to be published” or “certified to an administrator” of an employee benefit plan, the evidence establishes that they are covered by § 1027 because they are required “to be kept” under § 107 of E.R.I.S.A., 29 U.S.C. § 1027 (1976). 29 U.S.C. § 1027, entitled “Retention of Records,” provides as follows: Every person subject to a requirement to file any description or report or to certify any information therefor under this subchapter or who would be subject to such a requirement but for an exemption or simplified reporting requirement under section 1024(a)(2) or (3) of this title shall maintain records on the matters of which disclosure is required which will provide in sufficient detail the necessary basic information and data from which the documents thus required may be verified, explained, or clarified, and checked for accuracy and completeness, and shall include vouchers, worksheets, receipts, and applicable resolutions, and shall keep" }, { "docid": "22980841", "title": "", "text": "of Welch, Morgan and Kleindienst have also argued in support of dismissal of the plaintiffs’ second amended complaint as an alternative ground for affirming the judgments in their favor. We discuss with respect to each defendant the various grounds asserted in the district court in support of dismissing both the first and second amended complaint. A. Defendants as ERISA Fiduciaries The district court concluded that American, Evans and Klekamp “are not fiduciaries within the meaning of E.R.I.S.A. and therefore are not subject to suit in this court.” Order of Nov. 24, 1980, at 7. The fiduciary duty standards imposed by ERISA, see 29 U.S.C. §§ 1104, 1105 (1976), are enforceable in civil damage actions only against parties who are fiduciaries under the ERISA statute. 29 U.S.C. § 1109(a) (1976). A person is a fiduciary for purposes of ERISA to the extent that he or she exercises discretion over the management of plan assets, renders investment advice for a fee or exercises discretionary control over the administration of a plan. 29 U.S.C. § 1002(21)(A) (1976). The facts recited in the plaintiffs’ complaint do not support their general allegation that the defendants in this case are fiduciaries because they “exercised control over the funds of [the Fund] and converted them to their own use.” Second Amended Complaint ¶ 35. Plaintiffs have not alleged any facts which would indicate that these defendants exercised any discretionary control over either the investment of Fund assets or the administration of the Fund. At best, the allegations of the complaint reveal a pattern of conspiratorial actions in support of actions by parties, such as Hauser and his associates, who may be fiduciaries as defined in ERISA. Cf. Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 634-35 (W.D.Wis.1979) (trustees, administrators and officers of union pension plan were ERISA-defined fiduciaries).. See also Brink v. DaLesio, 496 F.Supp. 1350, 1374-75 (D.Md.1980), aff’d in part, rev’d in part on other grounds, 667 F.2d 420 (4th Cir. 1981). But, even though plaintiffs have failed to state a claim against these defendants as fiduciaries within the meaning of ERISA, they may still" }, { "docid": "9768901", "title": "", "text": "and 79-75 (Oct. 29, 1979). Department of Labor advisory opinions suggest that a disability plan falls into the aforementioned payroll practice exemption if it is designed to replace the loss of an employee’s normal compensation for absences from work resulting from medical problems that are foreseeably temporary. See U.S. Dept. of Labor Opinion Letters 93-2A (Jan. 12, 1993), 1993 WL 68525 (E.R.I.S.A.) (maximum benefit period of 180 days); 85-23A (June 10, 1985), 1985 WL 32814 (E.R.I.S.A.) (maximum benefit period of varying duration according to employee group); 82-44A (Aug. 27, 1982), 1982 WL 21227 (E.R.I.S.A.) (medical leave of absence granted for up to 30 days, with additional 30 day extensions, up to a maximum of 6 months). When the temporary period ends, an employee may then become entitled to benefits under a disability plan. See U.S. Dept. of Labor Opinion Letters 83-37A (July 18, 1983), 1983 WL 22522 (E.R.I.S.A.) (specific payroll practice plan provides benefits from general assets for a maximum period of 6 months, after which employees enrolled in Contributory Long Term Disability Income Plan may begin to receive benefits under that program). The existence of a payroll practice plan, therefore, does not mean that short and long term disability benefit plans do not exist. We find that the plaintiffs fifth cause of action, alleging violation of a payroll practice plan, does not fall under the coverage of ERISA. But at the same time, we find that disability and health plans do exist in this case and that they are welfare benefit plans protected by ERISA. 3. ERISA and Workmen’s Compensation Defendant’s assertion that plaintiffs factual allegations only pertain to his efforts to receive workmen’s compensation is not supported by the supporting documentation. The fact that an employee has recourse to workmen’s compensation for a specific injury does not mean that the employee’s ERISA claim must necessarily fail. Workmen’s compensation benefit schemes or plans are usually exempt from ERISA. Therefore, if the plaintiff lost his job merely because he repeatedly requested that a workmen’s compensation claim be filed, he may not have an ERISA cause of action, Stingley v. Tennco," }, { "docid": "13530774", "title": "", "text": "bulletin relating to record retention requirements under the predecessor of E.R.I.S.A., § 11 (29 U.S.C. § 308b) of the Welfare and Pension Plan Disclosure Act of 1958 (W.P.P.D.A.), Pub.L. 85-836, 72 Stat. 997, reprinted in 1958 U.S.Code Cong. & Ad.News 1172-80, repealed by, The Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The language in § 11 of the W.P.P.D.A. is virtually identical to that in § 107 of E.R.I.S.A. There is no indication that the requirement for the retention of these types of records was changed by the enactment of E.R.I.S.A. The regulation provides as follows: (e) Records maintained shall also include, where appropriate, information certified to the Administrator by an insurance carrier or service or other organization. Other records such as payrolls from contributing employers, which the reporting person, trustee, or organization, as described in § 486.2 obtains in the regular course of its operations, to the extent such records may be used for said verifying or checking shall also be retained. 29 C.F.R. § 486(3)(c) (1982). Since EBCC forms and MCRs, like employee payrolls, are used by trustees of welfare and pension funds for “verifying and checking,” it follows that they are required to be retained under § 107 of E.R.I.S.A., 29 U.S.C. § 1027 (1976). Therefore, we reject the argument of appellants that the documents containing the false statements in this case are not covered by the statute. Likewise, we find no expression of legislative intent contrary to the broad language of 18 U.S.C. § 1027, which we conclude is applicable to employers who knowingly make false statements in E.R.I.S.A. documents. See United States v. Turkette, supra, 452 U.S. at 580, 101 S.Ct. at 2527. In 1958, Congress enacted the Welfare and Pension Plans Disclosure Act (W.P.P.D.A.), Pub.L. 85-836, 72 Stat. 997, reprinted in 1958 U.S.Code Cong. & Ad.News 1172, repealed by The Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The W.P.P. D.A. was enacted after a comprehensive investigation into numerous abuses in the administration" }, { "docid": "3668294", "title": "", "text": "irregularities “must have some connection to the substantive decision reached; i.e., they must cause the actual decision to be a breach of the plan trustee’s fiduciary obligations.” Id. at 901. Reasoning that the insurance company had made a thorough investigation and adequately explained the basis for its decision, the court in McGarrah concluded that the claimant failed to meet his burden of presenting evidence that the irregularity raised serious doubts about the integrity of the decision making process. McGarrah, 234 F.3d at 1031. The court therefore held that the district court properly applied the deferential abuse of discretion standard. Id.; see also Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1198-99 (8th Cir.2002) (upholding the district court’s decision to review the decision for an abuse of discretion where the administrator’s “failure to provide [the beneficiaries] with timely notice of the denial and of their appeal rights” resulted in a procedural irregularity, but the irregularity did not “so undermine the decision of the plan administrator as to render it suspect”); Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820, 827-28 (8th Cir.2001) (stating that a “sliding-scale” standard of review is appropriate only if the claimant presents material, probative evidence demonstrating a palpable conflict of interest or serious procedural irregularity that caused a serious breach of fiduciary duty, and concluding that a less deferential standard of review was not warranted). Here, VPA’s response detailed the reasons for the denial of Jebian’s appeal. There is no evidence in the record, that VPA relinquished the discretion granted it in the plan or that the untimeliness of its response raised doubts about the integrity of the decision-making process. “Ordinarily, a claimant who suffers because of a fiduciary’s failure to comply with ERISA’s procedural requirements is entitled to no substantive remedy.” Blau v. Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir.1985) (citation omitted); see also Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 807 (6th Cir.1996) (“Generally, the courts have recognized in E.R.I.S.A. cases that procedural violations entail substantive remedies only when some useful purpose would be served.”). As the majority" }, { "docid": "4032116", "title": "", "text": "claim for review, nor is there any indication of what additional proof might be required. Id. In so determining, Circuit Judge Contie relied upon the decision of the Seventh Circuit Court of Appeals in Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir.1988), which recognized that errors in E.R.I.S.A. procedure may in some instances require remand to the fiduciary to determine whether the “additional evidence” not considered because of the procedural error warrants a modification of the claim decision. Wolfe, supra at 394. The Vanderklok panel, although following Wolfe, chose instead to remand to the district court for a determination of whether the additional evidence entitled the defendant to benefits. Vanderklok, supra at 617. Both cases were, however, distinguishable from another case discussed in Wolfe, Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 824 (7th Cir.1980), in that Wolfe and Vanderklok involved claim decisions where the additional evidence might change the claim decision such that the remands represented more than a “useless formality.” Wolfe, supra at 394. The attention directed in these opinions to the question of whether procedural violations require substantive remedies is not unique. Generally, the courts have recognized in E.R.I.S.A. cases that procedural violations entail substantive remedies only when some useful purpose would be served. Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2nd Cir.1995); Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1308 (9th Cir.1986); Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1096 (9th Cir.1985); Offutt v. Prudential Ins. Co., 735 F.2d 948, 950-51 (5th Cir.1984). In this case, the alleged defects in claim procedure do not warrant reversal of the trial court’s decision for two distinct, but related, reasons. First, this case can and should be distinguished from Wolfe and Vanderklok in that a remand in this case would represent a useless formality. In light of the plan language giving the fiduciary broad discretion to make coverage decisions, additional evidence is only pertinent to the extent that it shows that the fiduciary’s decision was an abuse of discretion. Such a conclusion is patently untenable in" }, { "docid": "18451782", "title": "", "text": "DECISION McMILLEN, District Judge. Defendant has filed a motion to dismiss the complaint in the above case pursuant to F.R.C.P. 12(b)(6). Count One is based upon E.R.I.S.A. and complains about the failure to pay benefits under the Pension Plan for injuries sustained on September 12, 1974. We find and conclude that this claim is barred by the provisions of 29 U.S.C. § 1144. The plaintiff’s claim is filed under Title I, § 502(a)(1)(B). Both parties agree that this claim is subject to the limitation of 29 U.S.C. § 1144 which provides as follows: * * * * * * (b)(1) This section [which previously refers to Title I] shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975. Plaintiff made his claim against the defendant on February 1, 1976, but his cause of action occurred prior to January 1, 1975, as pointed out above. Although defendant allegedly failed to pay the claim after January 1, 1975, this is not an “act or omission” which itself gave rise to a claim. If it were, then it would have the effect of circumventing the statutory bar which is written into the statute. In our opinion, an “act or omission” under the statute refers to an independent, actionable event. Plaintiff filed a pendent State action under Count Two, based upon tort. This action of course is dependent upon our retention of jurisdiction under Count One and will fall with it. Plaintiff also argues that he can amend his complaint to allege jurisdiction under § 301(a) of the Taft-Hartley Act. However, if this were so, then the remedial cause of action provided by E.R.I.S.A. would be unnecessary. Furthermore, our Court of Appeals has adopted the view that individual beneficiaries under a pension plan have no standing to sue for their personal claims under § 302 of the Taft-Hartley Act, and we can see no real distinction between that case and a suit under § 301. Johnson v. Botica, 537 F.2d 930, 933 (7th Cir. 1976); see also Meehan v. Laborers Pension" }, { "docid": "9768900", "title": "", "text": "and/or Partial-Pay Sick Leave, if any.” (Pis.’ Compl. at 10-11; see also Defs.’ Mem.Supp.Summ.J. at 9-11.) The two claims are separate causes of action. ERISA does not protect certain benefits an employer provides to employees from general assets. For example, “payroll practices” paid from general assets are exempt pursuant to 29 C.F.R. Section 2510.3-l(b)(2). That section states that ERISA exempts from protection “payment of an employee’s normal compensation out of the employers’ general assets, on account of periods of time during which the employee is physically or mentally unable to work or is otherwise absent for medical reasons, such as pregnancy or psychiatric treatment.” The commentary on this exemption from ERISA coverage is very scant. If AWPI funded the disability plan from general assets, that fact alone would not exempt the plan from ERISA coverage. See Williams v. Wright, 927 F.2d 1540, 1544 (11th Cir.1991) (the payment of benefits out of an employer’s general assets does not affect the threshold question of ERISA coverage), citing U.S. Dept. of Labor Opinion Letters 78-18 (Sept. 20, 1978) and 79-75 (Oct. 29, 1979). Department of Labor advisory opinions suggest that a disability plan falls into the aforementioned payroll practice exemption if it is designed to replace the loss of an employee’s normal compensation for absences from work resulting from medical problems that are foreseeably temporary. See U.S. Dept. of Labor Opinion Letters 93-2A (Jan. 12, 1993), 1993 WL 68525 (E.R.I.S.A.) (maximum benefit period of 180 days); 85-23A (June 10, 1985), 1985 WL 32814 (E.R.I.S.A.) (maximum benefit period of varying duration according to employee group); 82-44A (Aug. 27, 1982), 1982 WL 21227 (E.R.I.S.A.) (medical leave of absence granted for up to 30 days, with additional 30 day extensions, up to a maximum of 6 months). When the temporary period ends, an employee may then become entitled to benefits under a disability plan. See U.S. Dept. of Labor Opinion Letters 83-37A (July 18, 1983), 1983 WL 22522 (E.R.I.S.A.) (specific payroll practice plan provides benefits from general assets for a maximum period of 6 months, after which employees enrolled in Contributory Long Term Disability Income Plan" }, { "docid": "16516346", "title": "", "text": "There was no reversible error either in the procedures the court used or in its conclusion. C. Termination Fenster and Frank also argue the district court erred when it refused to consider whether the Plan was actually terminated. They take the position that it was terminated, because under the terms of § 6.4(c) of the Plan, that would make all of the participants, including themselves, fully vested. To begin with, this issue is remarkably close to one we resolved in Spitz I. Indeed Spitz argues that Spitz I precludes Fenster and Frank from even raising the issue. We will not go as far as to say that Fenster and Frank are barred by the law of the case from making the argument. The focus in Spitz I was on whether the district court used the proper vesting percentages and correctly allocated the 1995 T & S contribution; to the extent the subject came up, Plan termination was a peripheral matter. We therefore may consider Fenster’s and Frank’s argument that the Plan ended by its own terms. Although ERISA imposes fiduciary duties on employers with respect to the management of plan assets, it does not require an employer to act in a fiduciary capacity when the employer abolishes or amends a benefits plan (or in this case declines to abolish a plan). Senn v. United Dominion Indus., Inc., 951 F.2d 806, 817 (7th Cir.1992). After considering Fenster’s and Frank’s argument that the Plan had self-terminated, the district court found that it had no authority to grant relief because T & S’s failure formally to terminate the plan did not involve a fiduciary decision. Buckley Dement, Inc. v. Travelers Plan Adm’rs of Ill., Inc., 39 F.3d 784, 790 (7th Cir.1994); Adams v. Avondale Indus., Inc., 905 F.2d 943 (6th Cir.1990). The district court may have slightly misunderstood the point Fenster and Frank were making, but in the end it makes no difference. They recognize that the act of termination is not a fiduciary one, but they argue that the Plan ended according to its own terms and that their rights automatically vested." }, { "docid": "16516343", "title": "", "text": "on, the omission was immaterial because the loan inevitably would have been approved. We do not know what would have happened, of course. It. is possible that Tepfer’s loan would have been approved, but the fact is that it never was. ERISA requires formal process, see McNab v. General Motors Corp., 162 F.3d 959, 961 (7th Cir.1998), and no amount of speculation can erase Tepfer’s disregard of the rules outlined by the SPD. Finally, we reject Tepfer’s contention that a quest for loan approval would have been futile because he would have needed Spitz’s approval (since Spitz was a trustee, and Spitz was not about to give it). We have heard Tepfer’s concern before about Spitz’s “conflict of interest.” Spitz, 171 F.3d at 449. Although Tepfer still insists Spitz is inherently biased and had no reason to be fair in dealing with Tepfer, this court found that “[t]he mere fact that Spitz has a potential conflict of interest between his role as owner of T & S and his role as plan administrator is not enough by itself to dismiss his interpretation of the Plan.” Id.; see also Mers v. Marriott Int'l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1020 (7th Cir.1998). Despite our discussion in Spitz I, Tepfer still offers no specific evidence of Spitz’s bias or abuse in this or any other determination he made as Plan administrator or as a trustee. The Participant Loan Program and Tep-fer’s loan were improper under both the SPD and the Plan. Tepfer must pay the final $100 of the $48,000 deposited in the registry of the district court to Spitz along with any interest accrued during this appeal. B. Statutory Penalties Fenster and Frank challenge the district court’s finding that T & S’s violation of 29 U.S.C. § 1024(b)(4)— through a seven-day delay in furnishing information — did not warrant any penalty. Before addressing the merits of Fenster’s and Frank’s argument, we note that they are incorrect to suggest that our review of this matter is de novo. It is within the district court’s discretion to determine whether to" }, { "docid": "13530775", "title": "", "text": "C.F.R. § 486(3)(c) (1982). Since EBCC forms and MCRs, like employee payrolls, are used by trustees of welfare and pension funds for “verifying and checking,” it follows that they are required to be retained under § 107 of E.R.I.S.A., 29 U.S.C. § 1027 (1976). Therefore, we reject the argument of appellants that the documents containing the false statements in this case are not covered by the statute. Likewise, we find no expression of legislative intent contrary to the broad language of 18 U.S.C. § 1027, which we conclude is applicable to employers who knowingly make false statements in E.R.I.S.A. documents. See United States v. Turkette, supra, 452 U.S. at 580, 101 S.Ct. at 2527. In 1958, Congress enacted the Welfare and Pension Plans Disclosure Act (W.P.P.D.A.), Pub.L. 85-836, 72 Stat. 997, reprinted in 1958 U.S.Code Cong. & Ad.News 1172, repealed by The Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The W.P.P. D.A. was enacted after a comprehensive investigation into numerous abuses in the administration of employee welfare and pension plans. The general goal of the W.P.P.D.A. was to protect participants and beneficiaries of these types of plans by requiring the plans to disclose and report financial information. Section 1027 was added later as part of the Welfare and Pension Plans Disclosure Act Amendments of 1962, Pub.L. 87-420, 76 Stat. 35, reprinted in 1962 U.S.Code Cong. & Ad.News 43, 51. It was enacted along with two other new criminal statutes, 18 U.S.C. § 644 (dealing with theft or embezzlement from employer benefit plans) and 18 U.S.C. § 1954 (dealing with kickbacks or conflict of interest payments to influence the operations of such plans). In these enactments Congress intended to provide the “enforcement teeth which [were] lacking in the existing law .... ” H.Rep. No. 998, 87th Cong., 2d Sess., reprinted in 1962 U.S.Code Cong. & Ad.News 1532, 1537. In 1974, E.R.I.S.A. was enacted to supersede the W.P.P.D.A. Section 1027 was amended so as to refer to E.R.I.S.A. but no alterations were made in its broad language to limit its scope." }, { "docid": "11511289", "title": "", "text": "duties under ERISA, and ... trust documents must generally be construed in light of ERISA’s policies.”); NationsBank, 126 F.3d at 1369 (ESOP trustees are required to follow plan documents only to the extent they are consistent with ERISA; if the mirror voting provision was imprudent, NationsBank must ignore the provision and vote the unallocated shares prudently). As was the case in Central States, this Court finds that the Cash Balance Plan amendment, itself, is consistent with ERISA. In fact, the use of the closing market price on the designated day of each of five years is consistent with ERISA’s own provision, § 3(1), 29 U.S.C. § 1002(18), that “adequate consideration” for purposes “of a security for which there is a generally recognized market” is “the price of the security prevailing on a national securities exchange which is registered under section 6 of the Securities Exchange Act of 1934.” Moreover, although the inflated value of Enron stock had the effect of severely reducing the plan participants and beneficiaries’ pension benefits, “[t]he Internal Revenue Code does not require that the defined benefit be fixed, but only that it be determinable according to criteria specified in advance that do not permit the plan to play favorites.” Brengettsy v. LTV Steel (Republic) Hourly Pension Plan, 241 F.3d 609, 612 (7th Cir.2001), citing 26 U.S.C. § 401(a)(25); 26 C.F.R. § 1.401-1(b)(1)(i). There are no allegations here of discrimination in the administration of the plan in order to interfere with benefits under § 510 of ERISA. Furthermore, an offset is a permissible method of controlling employer costs; “[bjenefits provided by one plan may be offset by benefits received under other plans provided by the same employer.” Lunn v. Montgomery Ward & Co., No. 97 C 3026, 1998 WL 102751, *6 (N.D.Ill. Feb. 26, 1998) (citing Pritchard v. Rainfair, 945 F.2d 185, 189-90 (7th Cir.1991), and Holliday v. Xerox Corp., 732 F.2d 548, 550-52 (6th Cir.1984)), aff'd, 166 F.3d 880 (7th Cir.1999). In sum Plaintiffs have failed to point out any specific provisions showing that the plan is inconsistent with the provisions of ERISA or of the" }, { "docid": "16516345", "title": "", "text": "award statutory penalties, and the existence of that discretion means that our review is deferential. Anweiler v. American Elec. Power Serv. Corp., 3 F.3d 986, 990 (7th Cir.1993); Harsch v. Eisenberg, 956 F.2d 651, 662 (7th Cir.1992). A fine is not mandatory even upon a finding of a violation of § 1024(b)(4). Ames v. American Nat’l Can Co., 170 F.3d 751, 759-60 (7th Cir.1999). No one doubts that the district court had the power to hold the administrator “personally liable to such participant or beneficiary in the amount of up to $100 a day” under 29 U.S.C. § 1132(c) for the seven-day delay. The question, however, is whether it was an abuse of discretion to refrain from exercising that power here. The district court reasonably determined that no penalty was required because T & S’s failure to comply with the statute did not materially prejudice the defendants. See Harsch, 956 F.2d at 662. Although Fenster and Frank protest that no hearing was held on the issue, they have raised no factual dispute requiring a hearing. There was no reversible error either in the procedures the court used or in its conclusion. C. Termination Fenster and Frank also argue the district court erred when it refused to consider whether the Plan was actually terminated. They take the position that it was terminated, because under the terms of § 6.4(c) of the Plan, that would make all of the participants, including themselves, fully vested. To begin with, this issue is remarkably close to one we resolved in Spitz I. Indeed Spitz argues that Spitz I precludes Fenster and Frank from even raising the issue. We will not go as far as to say that Fenster and Frank are barred by the law of the case from making the argument. The focus in Spitz I was on whether the district court used the proper vesting percentages and correctly allocated the 1995 T & S contribution; to the extent the subject came up, Plan termination was a peripheral matter. We therefore may consider Fenster’s and Frank’s argument that the Plan ended by its own" }, { "docid": "4032113", "title": "", "text": "the issue of coverage. Kent filed her notice of appeal on May 25, 1995. II. This appeal asks the question of whether the disability claimant received the process required by E.R.I.S.A. (29 U.S.C. § 1133), and by the federal regulations enacted under E.R.I.S.A. (29 C.F.R. § 2560.503-1), as interpreted by the Sixth Circuit Court of Appeals in Vanderklok v. Provident Life & Acc. Ins. Co., 956 F.2d 610, 615-616 (6th Cir.1992). Because the plan in question gave the fiduciary broad discretion to determine claims, the denial of the coverage decision itself is reviewed by the courts to determine if it was arbitrary and capricious. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), Leahy v. Trans Jones, Inc., 996 F.2d 136, 139-140 (6th Cir.1993); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991). However, the question of whether the procedure employed by the fiduciary in denying the claim meets the requirements of Section 1133 is a legal question which the Court must review de novo. Bartling v. Fruehauf Corp., 29 F.3d 1062, 1069 (6th Cir.1994). Title 29 United States Code Section 1133 provides: In accordance with regulations of the Secretary, every employee benefit plan shall— (1) provide adequate notice in writing to any participant or beneficiary whose claims for benefits under the plan has been .denied, setting forth the specific reasons for such denial, written- in a manner calculated to be understood by the participant, and (2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim. 29 U.S.C. § 1133. The meaning of this Section is further explained in regulations codified at Title 29 Code of Federal Regulations Section 2560.503-1. These regulations specify that a fiduciary shall establish a claim procedure which informs a claimant of a denial of a claim within 90 days of receipt of the claim. The regulations further specify that the procedure should inform the claimant of the specific reasons for denial of" }, { "docid": "4032112", "title": "", "text": "stating that Kent was totally disabled until at least February 1,1994. However, Kent did not await further determinations from United. Rather, she filed suit in the Court of Common Pleas of Cuya- hoga County, Ohio alleging breach of the disability insurance plan at issue because of the denial of benefits and because of violations of E.R.I.S.A. mandated procedure. This suit was removed to the Northern District of Ohio on February 16,1994. This case was later tried by the district court on April 12-13, 1995. Following trial, the district court concluded that United gave Kent adequate notice of the denial of claim (by its letter of September 3, 1993) and advised her of her right to appeal the decision and submit additional evidence (which was in fact submitted but which did not persuade the company of. a disability). Further, in light of the evidence that Ms. Kent could in fact return to work, the trial judge concluded that denial of benefits was not “an abuse of discretion” and therefore the company was not required to revisit the issue of coverage. Kent filed her notice of appeal on May 25, 1995. II. This appeal asks the question of whether the disability claimant received the process required by E.R.I.S.A. (29 U.S.C. § 1133), and by the federal regulations enacted under E.R.I.S.A. (29 C.F.R. § 2560.503-1), as interpreted by the Sixth Circuit Court of Appeals in Vanderklok v. Provident Life & Acc. Ins. Co., 956 F.2d 610, 615-616 (6th Cir.1992). Because the plan in question gave the fiduciary broad discretion to determine claims, the denial of the coverage decision itself is reviewed by the courts to determine if it was arbitrary and capricious. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), Leahy v. Trans Jones, Inc., 996 F.2d 136, 139-140 (6th Cir.1993); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991). However, the question of whether the procedure employed by the fiduciary in denying the claim meets the requirements of Section 1133 is a legal question which the Court must review de" } ]

[ { "docid": "12785339", "title": "", "text": "award should be disturbed on this appeal. Prejudgment Interest Mobil, in its direct appeal, seeks relief from the district court’s decision to deny prejudgment interest. In admiralty, interest should be granted unless there are exceptional or peculiar circumstances. American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., 477 F.2d 914 (8th Cir. 1973). Prejudgment interest is not awarded as a penalty, but is in the nature of compensation for the use of funds. See Rosa v. Insurance Company of the State of Pennsylvania, 421 F.2d 390, 393 (9th Cir. 1970). In the instant case the defendants have had the use of money during the entire period of this protracted litigation, to which the plaintiffs have ultimately been found entitled. Nonetheless, the district court concluded that prejudgment interest should not be awarded here because of “[t]he complex nature of these consolidated cases, the extensive discovery required, the stay required because of [a] pending related Texas case and the delay attributable to the Court’s crowded trial docket, which circumstances occurred without the fault of the defendants.” Trial delays not caused by the plaintiffs do not constitute “the exceptional or peculiar circumstances needed to negate an interest award.” Defendants’ lack of fault is not compelling. The plaintiffs were not responsible for delay. They cannot be charged with either the complexity of the case or the condition of the court’s docket. Although there was a great deal of discovery, much of it resulted in depositions which were ultimately read into evidence at the trial. Many of these depositions were of persons residing in Europe. The inherent delay flowing from the need to secure the testimony of these parties is not the type of exceptional circumstance which warrants the denial of interest. The stay of proceedings which delayed the disposition of this case for some three years was not sought by the plaintiffs, nor is there a suggestion that it was a frivolous or dilatory maneuver engaged in for tactical advantage. Other than" } ]

[ { "docid": "5390144", "title": "", "text": "moored barges was done in an improper manner. CONCLUSIONS OP LAW 1. This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. § 1333. 2. The Court finds that plaintiff Consolidated Grain & Barge Company is entitled to a judgment against the defendant in the amount of $13,450.30 plus prejudgment interest from September 28, 1976. 3. The Court finds that plaintiff Federal Barge Lines is entitled to a judgment against the defendant in the amount of $18,811.50 plus prejudgment interest from September 7, 1976. 4. The question of prejudgment interest is one which the Eighth Circuit has held that plaintiff is entitled to from the date payment of damages is made. Mid-America Transportation Company, Inc. v. Cargo Carriers, Inc., 480 F.2d 1071 (8th Cir. 1973). Six percent is insufficient. The maximum rate at which an individual is charged in the state of Missouri is 10 percent per annum, and has been during this period of time, but the prime rate has exceeded this amount during this period of time. There is no limit to the interest rate which a lender may charge a corporation. Accordingly, this Court will award prejudgment interest at the rate of 10 percent per annum for both plaintiffs from the date the payment of damages was made. Complaint of M/V Vulcan, 553 F.2d 489 (5th Cir. 1977) (12 percent); Sea-Land Serv., Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532 (W.D.Wash.1977) (8 percent)." }, { "docid": "979767", "title": "", "text": "item of damages is primarily a problem of proof and it is for the district court initially to determine whether the moving party has produced the quantum and quality of evidence sufficient to establish the claim in a sum certain. Handi Caddy, Inc. v. American Home Products, 557 F.2d 136, 139 (8th Cir. 1977). Upon careful review of the record and the financial computations submitted for the first time on appeal, we hold that the district court did not err in denying lost profits. Prejudgment Interest Appellant next argues that the district court erred in failing to award prejudgment interest on the full amount of stipulated damages. Appellant argues that recovery of prejudgment interest represents an element of just compensation for the actual loss which it suffered. The district court denied the claim on the grounds that appellant had unduly inflated its claim. We agree with appellant’s assertions and reverse and remand. Generally, the award of prejudgment interest, in the absence of statutory directives, rests in the discretion of the district court. Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir. 1973); see also Lodges 743 & 1746, International Ass’n of Machinists v. United Aircraft Corp., 534 F.2d 422 (2d Cir. 1975), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976) (hereinafter Lodges). Prejudgment interest is to be awarded whenever damages lawfully due are withheld, unless there are exceptional circumstances to justify the refusal. United States v. Motor Vessel Gopher State, 614 F.2d 1186, 1190 (8th Cir. 1980); The Wright, 109 F.2d 699, 702 (2d Cir. 1940). A vital ingredient in the determination of whether to award prejudgment interest is a desire to make whole the party injured, but in appropriate circumstances compensatory principles must be tempered by an assessment of the equities. Lodges, supra, 534 F.2d at 447. No finding was made by the district court that established the existence of exceptional or peculiar circumstances; the district court merely rejected appellant’s claim because “the value which appellant placed upon the facility was unreasonably high.” Cargill, Inc. v. Taylor Towing Service, Inc.," }, { "docid": "3352307", "title": "", "text": "1014 (5th Cir. 1977); Complaint of M/V Vulcan, 553 F.2d 489, 491 (5th Cir. 1977); Norfolk Shipbuilding & Drydock Corp. v. M/Y La Belle Simone, 537 F.2d 1201, 1204 (4th Cir. 1976); The President Madison, 91 F.2d 835, 846 (9th Cir. 1937). Appellant’s contention is that all prejudgment interest awards in admiralty eases should be fixed at the maximum interest rate permitted by the statutes of the forum state. It is well established that a federal court in setting the rate of prejudgment interest in admiralty actions is not bound by state statutory interest rates. United States v. M/V Gopher State, supra, 614 F.2d at 1190; United States v. M/V Zoe Colocotroni, 602 F.2d 12, 14 (1st Cir. 1979); Complaint of M/V Vulcan, supra, 553 F.2d at 491; The President Madison, supra, 91 F.2d at 847; Robinson on Admiralty § 114, p. 85 (West 1939). The district court’s award of prejudgment interest may be reversed only if there was an abuse of discretion. See, e. g., Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 429 (2d Cir. 1962). The district court examined several rates of interest and concluded the prevailing rate of interest was ten percent per annum. We cannot say this was an abuse of discretion. Affirmed. . The Honorable James H. Meredith, Chief Judge of the United States District Court for the Eastern District of Missouri. . Each appellee owned one barge which was damaged as a result of appellant’s negligence. The district court entered judgment against appellant and in favor of appellee Consolidated Grain & Barge Co. in the amount of $13,450.30 plus prejudgment interest from September 28, 1976. Federal Barge Lines, Inc. v. Republic Marine, Inc., 472 F.Supp. 371, 373 (E.D.Mo. 1979). The judgment against appellant and in favor of appellee Federal Barge Lines was entered in the amount of $18,811.50 plus prejudgment interest from September 7, 1976. Id. . The six percent interest figure which appellant asserts should be imposed as a proper rate of prejudgment interest is taken from Mo.Ann. Stat. §§ 408.020, 408.040 (Vernon’s 1979). These statutes are general provisions and have" }, { "docid": "3352306", "title": "", "text": "district court. It is the general rule of this circuit that in admiralty cases, prejudgment interest is permitted in the discretion of the trial court and “should be granted unless there are exceptional or peculiar circumstances.” United States v. M/V Gopher State, 614 F.2d 1186, 1190 (8th Cir. 1980) (quoting Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir. 1973)). As the district court properly noted, prejudgment interest is to be computed from the time expenditures were actually made, i, e., the time of payment. Mid-America Transportation Co., Inc. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th Cir. 1973); Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., supra, 477 F.2d at 916. The rationale for an award of prejudgment interest in an admiralty case is restitution; such an award is for the purpose of fully compensating an injured party for its losses. United States v. M/V Gopher State, supra, 614 F.2d at 1189-90. See Socony Mobil Oil Co. v. Texas Coastal & International, Inc., 559 F.2d 1008, 1014 (5th Cir. 1977); Complaint of M/V Vulcan, 553 F.2d 489, 491 (5th Cir. 1977); Norfolk Shipbuilding & Drydock Corp. v. M/Y La Belle Simone, 537 F.2d 1201, 1204 (4th Cir. 1976); The President Madison, 91 F.2d 835, 846 (9th Cir. 1937). Appellant’s contention is that all prejudgment interest awards in admiralty eases should be fixed at the maximum interest rate permitted by the statutes of the forum state. It is well established that a federal court in setting the rate of prejudgment interest in admiralty actions is not bound by state statutory interest rates. United States v. M/V Gopher State, supra, 614 F.2d at 1190; United States v. M/V Zoe Colocotroni, 602 F.2d 12, 14 (1st Cir. 1979); Complaint of M/V Vulcan, supra, 553 F.2d at 491; The President Madison, supra, 91 F.2d at 847; Robinson on Admiralty § 114, p. 85 (West 1939). The district court’s award of prejudgment interest may be reversed only if there was an abuse of discretion. See, e. g., Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426," }, { "docid": "18903238", "title": "", "text": "its claim against the insured, specially since, as the Defendants themselves concede, they could have been entitled to deny liability under said certificate of insurance. Defendants correctly argue that delay on the part of an injured party to press his claim to conclusion is a factor which may prevent recovery of prejudgment interest. See, San Juan Trading Co. v. The Marmex, supra, at 260 (D.C.P.R., 1952); Mid American Transportation v. Rose Barge Line, 477 F.2d 914 (C.A. 8, 1973). But this general principle is not applicable to this litigation. The contention that the United States was derelict in prosecuting the instant action by failing to oppose consolidation does, not convince us of the contrary. Suffice it to say that this curious proposition presents to this Court the untenable alternative of chastising a party for not requesting the severance of adequately consolidated actions. We refuse to so act, specially when the Defendants themselves did not oppose the consolidation. The foregoing considerations convince us that the United States is entitled to prejudgment interest. In determining the starting date for its computation, we are mindful that the general rule in admiralty favors the award of interest from the date of the loss or casualty. See Moore McCormack Lines, Inc. v. Amirault, 202 F.2d 893, 898 (C.A. 1, 1953); Geotechnical Corp. of Delaware v. Pure Oil Co., 214 F.2d 476, 477-478 (C.A. 5, 1954); Alcoa S.S. Co. v. Charles Ferran & Co., 443 F.2d 250, 256 (C.A. 5, 1971), cert. den., 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 94 (1971). But this general rule is of course subject to exceptions, giving regard to the particular circumstances presented by each case and in accordance with the Court’s discretionary powers. E. g., Aegean (Shipbrokers’) Limited v. Henriksen’s Rederi A/S, 165 F.Supp. 939 (D.C.Mass., 1958). The instant action cannot be blindly encased in the confines of a typical admiralty claim. Prior to the date when the Government first sent a bill, the claims were unliquidated and unascertained. We think that an award of interest from the date of liquidation adequately satisfies the compensatory policy set forth" }, { "docid": "19118567", "title": "", "text": "case the district court resolved the question of causation in Ohio’s favor and we cannot say this factual finding is clearly erroneous. Prejudgment interest is awarded in admiralty suits in the discretion of the district court to ensure compensation of the injured party in full and should be granted unless there are exceptional or peculiar circumstances. United States v. Motor Vessel Gopher State, supra, 614 F.2d at 1190; Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir.1973). We have approved different approaches to deriving a rate of interest which will make the plaintiff whole. See, e.g., General Facilities, Inc. v. National Marine Service, Inc., 664 F.2d 672, 674 (8th Cir.1981) (average prime interest rate during relevant period); Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372, 373-74 (8th Cir.1980) (prevailing rate of interest). In Cargill, Inc. v. Taylor Towing Service, Inc., 642 F.2d 239, 242 n. 6 (8th Cir.1981), we observed that the district court should award interest “at a rate generally consistent with the interest rate prevailing at the time repairs were completed because it is during this period that [defendant] had the use and benefit of the money.” Accord United States v. Motor Vessel Gopher State, supra, 614 F.2d at 1190. It is difficult to determine how the district court arrived at a 10 percent figure for prejudgment interest. Ohio presented evidence that its cost of borrowing money is the prime rate of the First National Bank of Boston, and that the average borrowing rate paid by Ohio from the time of the accident to the time of trial was 15.45 percent. No other evidence was offered at trial pertaining to the appropriate rate of prejudgment interest. Nevertheless, the district court held that a rate of 10 percent would fully compensate Ohio and for support cited other cases in which that rate had been approved. 556 F.Supp. at 94. Ascertainment by the district court of the appropriate prejudgment interest rate in this case was a factual question, not a legal one, however, and hence it was not within the district court’s" }, { "docid": "11830950", "title": "", "text": "that Edinburgh had not acted in bad faith, but rather had refused to pay out on the policy due to a good faith, but erroneous interpretation of “actual total loss” under the Act. This finding was not clearly erroneous. See United States v. United States Gypsum Co., supra. Although the district court acknowledged Edinburgh’s “singlemindedness” in disclaiming liability, see 479 F.Supp. at 160, that observation does not, as Burns insists, conflict with a finding of good faith. Rather, it is equally consistent with the conclusion that Edinburgh honestly believed only a total, physical destruction of the Gatto was an insurable event. For this same reason, it was not error for the district court to refuse to award the amount claimed as attorneys’ fees. See Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962). The district court did err, however, in failing to award prejudgment interest. The district court awarded interest at the rate of 7%, the legal interest rate in California, from the date of judgment. Yet the general rule in admiralty cases is that prejudgment interest will be awarded. Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322, 1328-29 (9th Cir. 1981); The President Madison, 91 F.2d 835, 845 (9th Cir. 1937). The determination of whether peculiar circumstances exist warranting the denial of prejudgment interest is left to the sound discretion of the district court. Dillingham Shipyard v. Associated Insulation Co., supra; Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372, 373 (8th Cir. 1980). Here, the district court presented no reasoned grounds for its refusal to award prejudgment interest' and its application of the 7% legal rate instead of the 10% rate sought by Burns and API. It is settled, however, that a federal court is not bound by state-prescribed interest rates in setting the rate of prejudgment interest in admiralty cases, id.; Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D.Wash.1977) (citing The President Madison, supra, 91 F.2d at 847), and that the rationale for an award of prejudgment interest is to compensate fully the" }, { "docid": "16776710", "title": "", "text": "Cir. 1973). A court sitting in admiralty need not fix interest at the legal rate allowed in the state where it sits. Sabine Towing and Transportation Co. v. Zapata Ugland Drilling, Inc., 553 F.2d 489, 491 (5th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977) (12 percent); Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D.Wash. 1977) (8 percent). We believe the district court should, on remand, award prejudgment interest at a rate more in keeping with the interest rates prevailing at the time repairs were completed and at a rate of not less than 8 percent per annum. Midwest contends that prejudgment interest should not be granted in this case because the United States’ claim was unreasonably high compared with its estimate and because Midwest offered to settle the case for the amount eventually awarded by the district court. However, appellee’s offer of settlement would be cause for denying prejudgment interest only if the United States was dilatory in bringing suit or if the suit was frivolous. Mid-American Transportation Co. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th Cir. 1973); Mid-America Transportation Co. v. Rose Barge Line, Inc., supra, 477 F.2d at 916. Although the government did not prevail in its claim for damages, we do not consider this suit frivolous. More importantly, the appellee has had the use of the money during this period. The judgment of the district court awarding the United States $100,000.00 as the reasonable cost of repairing the damages to Miter Gate No. 4 is affirmed and the case is remanded. On remand, the prejudgment interest rate should be increased in accordance with this opinion to at least 8 percent to reflect more realistically the interest rates prevailing at the time the repairs were completed. . The burden of proof was on the government to establish that the amount claimed was reasonable and that it fairly reflected the actual costs of repairing the gates. See, e. g., Isthmian S.S. Co. v. Jarka Corp., 100 F.Supp. 856, 860 (Md.Admiralty Div.1951). . Surprisingly, that estimate was" }, { "docid": "3352305", "title": "", "text": "STEPHENSON, Circuit Judge. In this admiralty action, the sole issue presented is whether the district court abused its discretion in awarding prejudgment interest at the rate of ten percent per annum to plaintiffs-appellees Federal Barge Lines, Inc. and Consolidated Grain & Barge Co. The district court, sitting without a jury, entered judgment for the appellees in the form of a compensatory award for damages to two barges occasioned by appellant’s negligence plus prejudgment interest at the rate of ten percent per annum from the date payment of damages was made. Federal Barge Lines, Inc. v. Republic Marine, Inc., 472 F.Supp. 371 (E.D. Mo.1979). The facts of the underlying dispute are clearly set forth in the district court opinion and need not be repeated here. Appellant concedes its liability for the damages sustained by appellees’ barges but contends it is liable for prejudgment interest only at a rate of six percent. We reject this contention that the award for prejudgment interest should be fixed at the forum state’s statutory limit, and affirm the decision of the district court. It is the general rule of this circuit that in admiralty cases, prejudgment interest is permitted in the discretion of the trial court and “should be granted unless there are exceptional or peculiar circumstances.” United States v. M/V Gopher State, 614 F.2d 1186, 1190 (8th Cir. 1980) (quoting Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir. 1973)). As the district court properly noted, prejudgment interest is to be computed from the time expenditures were actually made, i, e., the time of payment. Mid-America Transportation Co., Inc. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th Cir. 1973); Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., supra, 477 F.2d at 916. The rationale for an award of prejudgment interest in an admiralty case is restitution; such an award is for the purpose of fully compensating an injured party for its losses. United States v. M/V Gopher State, supra, 614 F.2d at 1189-90. See Socony Mobil Oil Co. v. Texas Coastal & International, Inc., 559 F.2d 1008," }, { "docid": "2163118", "title": "", "text": "Cir., 1973); Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 814 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969). II. We turn to the cross appeal. The plaintiff, Mid-America, claims entitlement to prejudgment interest on the full amount of stipulated damages. Mid-America argues that recovery of interest represents an element of just compensation for the actual loss which it suffered. In denying the claim, the trial court stated: The court has reviewed the docket entries in this case, and finds no evidence of dilatory activity by defendants. The defenses were not frivolous and in all the circumstances prejudgment interest does not appear warranted in this case. [347 F.Supp. at 573.] Although in admiralty the award of prejudgment interest rests in the discretion of the trial court, interest should be granted unless there are exceptional or peculiar circumstances. American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Sinclair Refining Co. v. SS Green Island, 426 F.2d 260 (5th Cir. 1970); The Wright, 109 F.2d 699 (2d Cir. 1940); The President Madison, 91 F.2d 835 (9th Cir. 1937). The exceptional or peculiar circumstances justifying denial of interest include delays in bringing or prosecuting the suit by the injured party. See American Zinc Co., supra, 441 F.2d 1100; The President Madison, supra, 91 F.2d 835. Here, the district court equated prejudgment interest with a penalty to be assessed against defendants for “dilatory action” or the assertion of “frivolous” defenses. But the prompt assertion of a good faith defense is not a relevant factor in determining the compensatory aspects of an award of damages, including an award of prejudgment interest. Since the record shows no reason to deprive the injured party of an award of prejudgment interest, we remand this cause to the district court so that it may make such award. However, since the plaintiff is not entitled to be put into a better position than it would have occupied had there been no collision with the sandbar, prejudgment interest" }, { "docid": "6818723", "title": "", "text": "of the PISHTAZ IRAN. See The M. Vivian Pierce, 48 F.2d 644 (D.Mass.1931). By contrast, Amjee performed very limited functions and the scope of its authority was quite restricted. We therefore conclude that Amjee was a special agent entitled to assert a maritime lien for its full claim and that the district court incorrectly ruled it a general agent. In view of this holding, we need not consider the correctness of the district court’s holding that with respect to part of its claim Amjee fell within the exception to the rule prohibiting a general agent from asserting a maritime lien. III. In allowing prejudgment interest, the district court fixed the rate at 6%. It articulated no reason why it considered this rate the proper one. The award of prejudgment interest in admiralty cases rests within the sound discretion of the district court. See Gardner v. The Calvert, 253 F.2d 395, 402-03 (3 Cir.), cert. denied, 356 U.S. 960, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958) (court not bound to charge maximum legal rates of interest). When allowed, prejudgment interest is considered an element of damages in admiralty, part of full and fair compensation to the injured party. See Gulf Oil Corp. v. Panama Canal Co., 481 F.2d 561, 570-71 (5 Cir. 1973) (Brown, C. J.); Norfolk Shipbuilding & Drydock Corp. v. The M/Y La Belle Simone, 537 F.2d 1201, 1204 (4 Cir. 1976). Accordingly, the district courts are not bound by state statutory máximums in setting the rate of prejudgment interest in admiralty cases, and indeed have been urged to follow the interest rate prevailing commercially. United States v. M/V Gopher State, 614 F.2d 1186, 1190 (8 Cir. 1980); Sabine Towing and Transportation Co. v. Zapata Ugland Drilling, Inc., 553 F.2d 489, 491 (5 Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977); but cf. United States v. M/V Zoe Colocotroni, 602 F.2d 12, 14 (1 Cir. 1979) (Coffin, C. J.) (failure to award higher commercial rate instead of statutory maximum no abuse of discretion). The record, however, does not show the basis on which the" }, { "docid": "2163117", "title": "", "text": "in finding that the tow’s starboard lead barge was out of the channel when it ran aground, thus creating a presumption of negligence which the defendant was unable to rebut. We affirm the finding of the district court. The plaintiff cross appeals, asserting that the district court erred in declining to award prejudgment interest on the $125,075 damage award. We reverse on this issue. I. The district court has related in detail the facts and circumstances of this case in its memorandum opinion. Mid-America Transportation Co. v. Rose Barge Lines, Inc., 347 F.Supp. 566 (E.D.Mo.1972). No worthwhile purpose would be served by repetition of these facts here. Giving due regard' to the opportunity of the trial court to make credibility determinations, we have concluded that these findings of fact rest upon an adequate evidentiary basis. Since these findings are not clearly erroneous, they may not be set aside on this appeal. Rule 52, Fed.R.Civ.P.; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Urian v. Milstead, 473 F.2d 948 (8th Cir., 1973); Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 814 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969). II. We turn to the cross appeal. The plaintiff, Mid-America, claims entitlement to prejudgment interest on the full amount of stipulated damages. Mid-America argues that recovery of interest represents an element of just compensation for the actual loss which it suffered. In denying the claim, the trial court stated: The court has reviewed the docket entries in this case, and finds no evidence of dilatory activity by defendants. The defenses were not frivolous and in all the circumstances prejudgment interest does not appear warranted in this case. [347 F.Supp. at 573.] Although in admiralty the award of prejudgment interest rests in the discretion of the trial court, interest should be granted unless there are exceptional or peculiar circumstances. American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Sinclair Refining Co. v. SS Green" }, { "docid": "13027146", "title": "", "text": "origin of the damage repaired on Barge 1322 is the grounding on October 30, 1980 as testified to by Captain Zane. Mr. Lindsay never saw the barge below the river line and he testified to omissions in his report. Mr. Hopkins’ only disagreement with Captain Zane was as to the damage in the bowrake compartment but Mr. Hopkins was basing his findings on Mr. Lindsay’s inconclusive report. The evidence adduced supports plaintiff’s repair bill of $37,656.44. On the other hand, the evidence presented does not support plaintiff’s cleaning bill of $1,525.00 for Barge 1322. Although Captain Zane testified to the necessity of cleaning before the repair work, there was evidence that the cleaning was required due to a cargo change from soybean to molasses. Plaintiff failed to carry its burden of showing by a preponderance of the evidence that the cleaning was a necessary pre-requisite to the repair work on Barge 1322. Therefore, the cleaning costs for Barge 1322, in the amount of $1,525.00 will be disallowed. The next issue to be addressed is the award of prejudgment interest against both defendants. The general rule in admiralty cases is that prejudgment interest should be awarded absent exceptional circumstances. Consolidated Grain and Barge Co. v. Archway Fleeting and Harbor Service, 712 F.2d 1287, 1290 (8th C 1983); Federal Barge Lines, Inc., v. Republic Marine, Inc., 616 F.2d 372, 373 (8th C 1980); Mid-American Transportation Co. v. Rose Barge Lines, 477 F.2d 914, 916 (8th C 1973); Ohio River Co. v. Great Lakes Carbon Corp., 562 F.Supp. 61 (E.D. Mo.1982) 714 F.2d 63 (8th C 1983) (reversed in part on other grounds); Ohio River Co. v. Peavey Co., 556 F.Supp. 87 (E.D.Mo. 1982). Prejudgment interest is to be computed from the time expenditures for repairs were actually made, i.e. the time of payment. Federal Barge Lines v. Republic Marine, at 373; Mid-American Transportation Co. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th C 1973); Mid-American Transportation v. Rose Barge, at 916. Although the rationale behind an award of prejudgment interest is restitution and full compensation, the setting of the prejudgment interest" }, { "docid": "16776708", "title": "", "text": "In making such determination you will exclude any items of overhead not reasonably necessary and any items of expense not properly allocable to such overhead. Id. at 388 (emphasis added). Testimony in this case revealed that a percentage of the overhead charges was applied to the miter repair job but that those charges were not specifically related to nor incurred as a result of the Gopher State job. In particular, the government failed to specify how the overhead calculated related to the costs of that job. As the district court found, “[t]he overhead charges were not based upon actual expenditures of overhead items related to the accident but were calculated under regulations promulgated by the Corps of Engineers and determined by the staff of the St. Louis District Corps of Engineers.” United States v. Motor Vessel Gopher State, 472 F.Supp. 556, 558 (E.D.Mo.1979). Increased overhead and indirect expenses are compensable, but only where there exists justification for awarding these costs. See, e. g., United States v. Commercial American Barge Line Co., 424 F.Supp. 453, 456 (E.D.Mo.1977). See also Canadian Pacific Railway v. United States, 272 F.2d 913, 918 (9th Cir. 1959); United Electrical Workers v. Oliver Corp., supra, 205 F.2d 376, 388 (8th Cir. 1953). It was the gross disparity between estimated and actual labor and overhead costs, unrebutted by adequate explanation for those increased costs, and the failure to show that the overhead arose “naturally from the particular breach,” id., which influenced the district court’s decision to limit the award of damages to an amount initially considered reasonable by the Corps as reflected in its estimate. Since this disparity was buttressed by the testimony of an expert admittedly used by the government to establish the cost of repairs in other instances of miter gate damage, we cannot say the trial court erred. In admiralty suits, prejudgment interest is awarded in the discretion of the district court to insure compensation of the injured party in full and “should be granted unless there are exceptional or peculiar circumstances.” Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th" }, { "docid": "16776709", "title": "", "text": "(E.D.Mo.1977). See also Canadian Pacific Railway v. United States, 272 F.2d 913, 918 (9th Cir. 1959); United Electrical Workers v. Oliver Corp., supra, 205 F.2d 376, 388 (8th Cir. 1953). It was the gross disparity between estimated and actual labor and overhead costs, unrebutted by adequate explanation for those increased costs, and the failure to show that the overhead arose “naturally from the particular breach,” id., which influenced the district court’s decision to limit the award of damages to an amount initially considered reasonable by the Corps as reflected in its estimate. Since this disparity was buttressed by the testimony of an expert admittedly used by the government to establish the cost of repairs in other instances of miter gate damage, we cannot say the trial court erred. In admiralty suits, prejudgment interest is awarded in the discretion of the district court to insure compensation of the injured party in full and “should be granted unless there are exceptional or peculiar circumstances.” Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir. 1973). A court sitting in admiralty need not fix interest at the legal rate allowed in the state where it sits. Sabine Towing and Transportation Co. v. Zapata Ugland Drilling, Inc., 553 F.2d 489, 491 (5th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977) (12 percent); Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D.Wash. 1977) (8 percent). We believe the district court should, on remand, award prejudgment interest at a rate more in keeping with the interest rates prevailing at the time repairs were completed and at a rate of not less than 8 percent per annum. Midwest contends that prejudgment interest should not be granted in this case because the United States’ claim was unreasonably high compared with its estimate and because Midwest offered to settle the case for the amount eventually awarded by the district court. However, appellee’s offer of settlement would be cause for denying prejudgment interest only if the United States was dilatory in bringing suit or if the suit" }, { "docid": "13027147", "title": "", "text": "award of prejudgment interest against both defendants. The general rule in admiralty cases is that prejudgment interest should be awarded absent exceptional circumstances. Consolidated Grain and Barge Co. v. Archway Fleeting and Harbor Service, 712 F.2d 1287, 1290 (8th C 1983); Federal Barge Lines, Inc., v. Republic Marine, Inc., 616 F.2d 372, 373 (8th C 1980); Mid-American Transportation Co. v. Rose Barge Lines, 477 F.2d 914, 916 (8th C 1973); Ohio River Co. v. Great Lakes Carbon Corp., 562 F.Supp. 61 (E.D. Mo.1982) 714 F.2d 63 (8th C 1983) (reversed in part on other grounds); Ohio River Co. v. Peavey Co., 556 F.Supp. 87 (E.D.Mo. 1982). Prejudgment interest is to be computed from the time expenditures for repairs were actually made, i.e. the time of payment. Federal Barge Lines v. Republic Marine, at 373; Mid-American Transportation Co. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th C 1973); Mid-American Transportation v. Rose Barge, at 916. Although the rationale behind an award of prejudgment interest is restitution and full compensation, the setting of the prejudgment interest rate is discretionary with the court. Federal Barge Lines v. Republic Marine, at 373; US. v. M/V GOPHER STATE, 614 F.2d 1190 (8th C 1980); Mid-American Transportation v. Rose Barge, at 916; Ohio River v. Peavey, at 93. This Court is not bound by the forum state statutory interest rates. Id. Plaintiff contends that the prevailing interest rate at the time repairs were made was 14.4%. Defendant Sun contends that the usual prejudgment interest rate in the Eastern District of Missouri is 10%. It has been held in this circuit that the prejudgment interest rate should be fixed at a rate in keeping with prevailing rates at the time repairs were made. General Facilities, Inc. v. National Marine Service, Inc., 664 F.2d 672, 674 (8th C 1981); Federal Barge Lines v. Republic Marine, at 373-374; US. v. M/V GOPHER STATE, at 1190; Ohio River v. Peavey, at 93. These cases held that prevailing rates were a guide to the Court and that the Court should consider the prevailing rates along with the evidence adduced, in" }, { "docid": "11830951", "title": "", "text": "rule in admiralty cases is that prejudgment interest will be awarded. Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322, 1328-29 (9th Cir. 1981); The President Madison, 91 F.2d 835, 845 (9th Cir. 1937). The determination of whether peculiar circumstances exist warranting the denial of prejudgment interest is left to the sound discretion of the district court. Dillingham Shipyard v. Associated Insulation Co., supra; Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372, 373 (8th Cir. 1980). Here, the district court presented no reasoned grounds for its refusal to award prejudgment interest' and its application of the 7% legal rate instead of the 10% rate sought by Burns and API. It is settled, however, that a federal court is not bound by state-prescribed interest rates in setting the rate of prejudgment interest in admiralty cases, id.; Sea-Land Service, Inc. v. Eagle Terminal Tankers, Inc., 443 F.Supp. 532, 534 (W.D.Wash.1977) (citing The President Madison, supra, 91 F.2d at 847), and that the rationale for an award of prejudgment interest is to compensate fully the injured party for its losses, Federal Barge Lines, Inc. v. Republic Marine, Inc., supra, 616 F.2d at 373. Having failed to articulate any reason why these general principles should not apply in this ease, the district court abused its discretion in refusing to award prejudgment interest. On remand, the district court should determine at what rate and from what time prejudgment interest should be awarded. III. The Counterclaims Burns and API also challenge the district court’s orders (1) granting summary judgment on their counterclaim for punitive damages for bad faith, and (2) striking their counterclaim for fraud in the inducement as a “sham” pleading pursuant to Fed.R.Civ.P. 11. The district court properly deferred consideration of the bad faith claim until after it had determined whether Edinburgh was liable under the indemnity contract. Subsequently, the district court concluded that there was no material question of fact as to whether Edinburgh disputed its obligation to indemnify Burns and API in bad faith. Summary judgment should, of course, rarely be granted on claims that hinge on questions of" }, { "docid": "19118566", "title": "", "text": "found, however, that had it not been struck, barge OR-3412 would have remained afloat without pumping for at least 30 days, and that it would have remained afloat indefinitely with the pumping that its attendants would have performed. Id. In addition, the court found that while some water entered other buoyancy compartments of OR-3412 as a result of pre-existing leaks, the amount of water was insufficient to sink the barge. Id. at 91. The district court then determined that the barge’s “pre-existing condition was not the proximate cause of its sinking.” Id. at 92. The district court’s factual findings in an admiralty case will not be set aside unless they are clearly erroneous. United States v. Motor Vessel Gopher State, 614 F.2d 1186, 1187 (8th Cir.1980); United Barge Co. v. Notre Dame Fleeting & Towing Service, Inc., 568 F.2d 599, 602 (8th Cir.1978). A causal relationship between the plaintiff’s fault and the harm suffered is a prerequisite to apportionment of damages. See Reliable Transfer, supra, 421 U.S. at 411, 95 S.Ct. at 1715. In this case the district court resolved the question of causation in Ohio’s favor and we cannot say this factual finding is clearly erroneous. Prejudgment interest is awarded in admiralty suits in the discretion of the district court to ensure compensation of the injured party in full and should be granted unless there are exceptional or peculiar circumstances. United States v. Motor Vessel Gopher State, supra, 614 F.2d at 1190; Mid-America Transportation Co. v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir.1973). We have approved different approaches to deriving a rate of interest which will make the plaintiff whole. See, e.g., General Facilities, Inc. v. National Marine Service, Inc., 664 F.2d 672, 674 (8th Cir.1981) (average prime interest rate during relevant period); Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372, 373-74 (8th Cir.1980) (prevailing rate of interest). In Cargill, Inc. v. Taylor Towing Service, Inc., 642 F.2d 239, 242 n. 6 (8th Cir.1981), we observed that the district court should award interest “at a rate generally consistent with the interest rate prevailing" }, { "docid": "979768", "title": "", "text": "v. Rose Barge Line, Inc., 477 F.2d 914, 916 (8th Cir. 1973); see also Lodges 743 & 1746, International Ass’n of Machinists v. United Aircraft Corp., 534 F.2d 422 (2d Cir. 1975), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976) (hereinafter Lodges). Prejudgment interest is to be awarded whenever damages lawfully due are withheld, unless there are exceptional circumstances to justify the refusal. United States v. Motor Vessel Gopher State, 614 F.2d 1186, 1190 (8th Cir. 1980); The Wright, 109 F.2d 699, 702 (2d Cir. 1940). A vital ingredient in the determination of whether to award prejudgment interest is a desire to make whole the party injured, but in appropriate circumstances compensatory principles must be tempered by an assessment of the equities. Lodges, supra, 534 F.2d at 447. No finding was made by the district court that established the existence of exceptional or peculiar circumstances; the district court merely rejected appellant’s claim because “the value which appellant placed upon the facility was unreasonably high.” Cargill, Inc. v. Taylor Towing Service, Inc., supra, 483 F.Supp. at 1099. The district court did not make a specific finding of bad faith on the part of appellant; nor did the district court find that appellant was dilatory in bringing the suit or that appellant asserted frivolous claims. Mid-America Transportation Co. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th Cir. 1973); Mid-America Transportation Co. v. Rose Barge Line, Inc., supra, 477 F.2d at 916. Thus, we are compelled to remand this issue to the district court with instructions to grant prejudgment interest on the amount of the damages awarded. In sum, the findings of fact made by the district court with regard to appellant’s claim for lost profits were not clearly erroneous; however, its conclusions with regard to the prejudgment interest claim are inconsistent with the law of this circuit. On remand prejudgment interest should be awarded to appellant at a fair and reasonable rate. Accordingly, the decision of the district court is affirmed as to the lost profits claim and reversed and remanded as to the prejudgment interest claim." }, { "docid": "22854354", "title": "", "text": "Inc., 559 F.2d 1008, 1014 (5th Cir.1977); American Zinc Co. v. Foster, 441 F.2d 1100, 1101 (5th Cir.), cert. denied sub nom. Ingalls Shipbuilding Div’n of Litton Systems, Inc. v. American Zinc Co., 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971). The trial courts may find other types of “peculiar” facts that would make it inequitable to award prejudgment in terest: Esso Int’l Inc. v. SS Captain John, 443 F.2d 1144, 1151 (5th Cir.1971), suggests that analogs to such traditional equity doctrines as laches, election of remedies, and estoppel may justify a finding of peculiar circumstances. . Of course, in any admiralty case in which the trial court refuses to award prejudgment interest, the best practice would be for it to detail the peculiar circumstances it has found, and specifically indicate that it is denying prejudgment interest as an exercise of the discretion created by the existence of peculiar circumstances. . The first type of exception allows attorneys’ fees to an indemnitee as against his indemnitor-not as attorneys’ fees qua attorneys’ fees, but as part of the reasonable expenses incurred in defending against the claim. Cotten v. Two \"R\" Drilling Co., 508 F.2d 669, 671 (5th Cir. 1975); Sommer Corp. v. United Fruit Co., 479 F.2d 1131, 1132-33 (5th Cir.1973); Brock v. Coral Drilling, Inc., 477 F.2d 211, 217 (5th Cir. 1973); Kelloch v. S&H Subwater Salvage, Inc., 473 F.2d 767, 771 (5th Cir.1973). This exception is clearly inapplicable in the case at bar, because in no sense can Hellenic be said to be Noritake’s indemnitor. The second type of exception allows the discretionary award of attorneys’ fees in admiralty cases when the nonprevailing party has acted in bad faith in the litigation. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed. 88 (1962). This sort of exception, and a related exception allowing attorneys’ fees as part of a penalty exacted for willful disobedience of a court order, “are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress.” Alyeska Pipeline Service Co., supra, 421 U.S. at" } ]

[ { "docid": "22751740", "title": "", "text": "of leniency and convenience as an inducement to a plea of guilty. These advancements by the petitioner were, of course, repudiated by the district attorney and she was informed of the officials who had jurisdiction over the matter in advent [the event] of her plea of guilty. “The chief contention of the petitioner was that her waiver of her right to counsel was not competently and intelligently made. The plea was taken before Judge Arthur Lederle of this District. The evidence showed that the Judge inquired of her if she understood the charges made in the indictment. She answered in the affirmative. The Judge inquired if she desired the assistance of counsel. She answered in the negative. The Judge then inquired what was her plea. She answered guilty. In addition to this she submitted a signed waiver stating that she did not desire counsel. “The only substantial question in this case is whether the petitioner intelligently and knowingly waived her constitutional rights. It was her obligation to sustain the allegations of her petition by a preponderance of evidence. Not only has she failed in this, but I believe that the evidence is overwhelming against her contentions. The petitioner is an intelligent, mentally acute woman. She understood the charge and the proceedings. She freely, intelligently and knowingly waived her constitutional rights. I conclude, therefore, that there is no merit in her petition and that it shall be dismissed together with the writ.” [72 F. Supp. 994, 995, 997.] The Circuit Court of Appeals affirmed the judgment dismissing the petition for the writ of habeas corpus. That judgment is now brought here and we are called upon to make a further review of the factual conclusions of the District Court in the habeas corpus proceedings. Due process of law calls for an equal regard by us for the interests of the Government and of the petitioner in seeking the nearest possible approximation to the truth. Necessarily we have only the printed record here. On the other hand, the trial judge, faced by the same issues, heard spoken the words we now read." } ]

[ { "docid": "12608144", "title": "", "text": "objection is proper. The Court of course will rule on it just as if you were represented by counsel. Otherwise the entire procedure will be just as if you were represented by counsel. In effect what you have done is discharged your counsel and the Commonwealth is prepared and has a right to proceed at this time in the case. Record at 1-2. While the trial judge apprised the defendant of the procedure to be used in his ensuing trial, he failed to ensure that the defendant’s decision to proceed pro se in that trial was made with “eyes open” — that McMahon truly understood the consequences of dismissing his attorney and electing to represent himself. Absent any such inquiry, we have no way of assessing whether McMahon’s decision to represent himself was made knowingly and intelligently. See United States v. Welty, 674 F.2d at 192. In light of the Supreme Court’s admonition that “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights,” Johnson v. Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, we conclude that the petitioner did not effectively waive his sixth amendment right to counsel in this case. IV. Viewing all the circumstances of this case, we hold that the trial court failed properly to determine whether McMahon’s waiver of his sixth amendment right of counsel was knowing and intelligent. The record does not show either that the trial court adequately inquired into the reasons for petitioner’s discharge of his original counsel, or, more significantly, that the petitioner understood the consequences of electing to represent himself. We therefore conclude that the petitioner did not effectively waive his sixth and fourteenth amendment rights in this case. We will reverse the district court’s order of August 8, 1986, and we will remand the cause with instructions to enter an order granting the writ of habeas corpus unless a new trial is held within a reasonable time. . According to the motion papers, petitioner maintained that Kubiak’s representation was \"ineffective, inadequate, and further that [Kubiak] was uncooperative and failed to take steps" }, { "docid": "12908662", "title": "", "text": "that he was charged with three felonies and that a conviction could result in long term imprisonment. He was furnished copies of the information and transcript of the preliminary hearing. Appellant was not legally trained but the record shows that he understood what charges were being made against him. Under the rule announced in Hodge v. United States, 414 F.2d 1040 (9 Cir. 1969), the waiver was intelligently made. An evidentiary hearing was not required. The facts here recited appear in the record. No contention is made that the record is not factually accurate. It is contended that the record does not show the facts required before there can be an effective waiver of counsel under the doctrine of Von Moltke v. Gillie, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Were the Von Moltke case controlling a reversal would be required. The rule of that case however, which involved a guilty plea, is not applicable to a ease where there has been a trial on the merits. The undisputed facts in the record do disclose a compliance with the applicable rule which was announced in Hodge, supra. See, Jackson v. California, 336 F.2d 521 (9 Cir. 1964); Yeaman v. United States, 326 F.2d 293 (9 Cir. 1963). Appellant contends that an attorney should have been appointed to prosecute his petition for a writ in the district court. An indigent state prisoner applying to a federal court for habeas corpus is not entitled to an appointed attorney unless the particular circumstances indicate that it is necessary to obtain due process. Eskridge v. Rhay, 345 F.2d 778 (9 Cir. 1965), cert. den. 382 U.S. 996, 86 S.Ct. 582, 15 L.Ed.2d 483. No such circumstances appear here. The order denying a writ of habeas corpus is affirmed. . “The question before the judge was not whether the defendant was professionally capable of acting as his own lawyer. New defendants are, and the right of self-representation is not so conditioned. The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he" }, { "docid": "4456478", "title": "", "text": "hesitate in making an important decision in their own lives.” Chin Kee v. Commonwealth of Massachusetts, 407 F.2d 10, 15 (1st Cir.), cert. denied, 395 U.S. 982, 89 S.Ct. 2143, 23 L.Ed.2d 770 (1969). Rather, we are firmly convinced that the possibility that petitioner was prejudiced by the absence of counsel in this case is “merely speculative or hypothetical,” and thus does not require the reversal of petitioner’s convictions. Id. at 14. Accord Moses v. Helgemoe, 562 F.2d 62, 64-65 (1st Cir.1976); Anderson v. United States, 352 F.2d 945, 947 (D.C.Cir.1965); State v. Mills, 107 Wis.2d 368, 372, 320 N.W.2d 38, 40 (Wis.Ct. App.1982). For these reasons, the district court’s order granting the petition for a writ of habeas corpus is reversed and the case remanded to the district court with directions to enter an order denying the petition. . The state court record does not reveal why the trial judge did not sentence Siverson on the theft conviction. . Defense counsel was present, however, at Siv-erson’s sentencing hearing on December 19, 1979. . Bernardi did not state why he thought a motion for mistrial might be appropriate at this point, but his concern presumably was based on the length of the jury deliberations as indicating a possible deadlock. . Since the additional grounds are no longer at issue, they will not be discussed herein. . On appeal, respondents have not argued, nor could they argue, that Siverson waived the presence of defense counsel during the jury deliberations and the return of the verdicts when the record does not clearly establish a knowing and intelligent waiver. See, e.g., Martin v. Rose, 744 F.2d 1245, 1251 (6th Cir.1984); United States v. Calabro, 467 F.2d 973, 988 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); Spencer v. State, 85 Wis.2d 565, 571, 271 N.W.2d 25, 28-29 (1978); Headen v. United States, 373 A.2d 599, 601 (D.C.1977). . We recognize that the lack of counsel at some critical stages may be considered prejudicial per se, and may result in automatic reversal of the defendant’s convictions without any" }, { "docid": "23411834", "title": "", "text": "OPINION FRED M. TAYLOR, District Judge: The appellant, Marvin L. Cooley, was convicted of wilfully and knowingly failing to file a federal income tax return for each of the years 1968, 1969 and 1970 in violation of Title 26 U.S.C., § 7203. Appellant was sentenced to a term of imprisonment of one year and fined in the amount of $2,000.00 on each count. The appellant voluntarily chose to represent himself at all times in the trial court, but on this appeal he is represented by counsel appointed at his request subsequent to the conclusion of the proceedings in the lower court. The issues, which have been raised and presented here, will be considered seriatim. One of the contentions now made by appellant is that the trial court erred in allowing him to represent himself without first determining whether the waiver of counsel was competently and intelligently made. We find this contention has no merit. The record reveals that appellant was and is a mature, intelligent and well-informed individual; that he was especially well informed in regard to income tax matters, the charges against him and the possible consequences if convicted in regard thereto. Also, it appears that appellant was knowledgeable, experienced and competent in regard to the legal proceedings in connection with the charges against him. It clearly appears from the record that appellant not only refused the court’s offer to appoint counsel for him, but that he knew of his right to represent himself and insisted on doing so. The court could not prop erly deny him that right. Title 28 U.S. C. § 1654; Hodge v. United States, 414 F.2d 1040, 1042 (9th Cir. 1969). We are then confronted with the question of whether the appellant eompetently and intelligently asserted the right to represent himself. In Hodge, a majority of this court, in banc, stated at p. 1042: “In this context we take this to mean whether he was sufficiently informed of the consequences of his choice.” Also in Hodge at p. 1043, the court asserted : “The question was simply whether the defendant understood the charges against" }, { "docid": "17080335", "title": "", "text": "by the Supreme Court, and not to give such a presumption to mere denials of writs of certiorari.” S.Rep. No. 1797, 1966 U.S.Code Cong. & Adm.News, p. 3664. The Supreme Court of the United States did not adjudicate petitioner’s claim; it merely dismissed the writ of certiorari, an action indistinguishable, in this instance, from a denial of certiorari. Duncan v. Carter, 299 F.2d 179 (9th Cir. 1962), relied upon by the court below, is distinguishable. There the Supreme Court’s per curiam opinion dismissing the writs expressly adjudicated the merits. The court stated, “the totality of circumstances disclosed fails to support the substantial due process issues tendered in the petitions for certiorari * * Baldonado v. California, 366 U.S. 417, 81 S.Ct. 1355, 6 L.Ed.2d 380 (1961). Reversed and remanded for further proceedings. TRASK, Circuit Judge (dissenting): It appears to me, as it did to the district court, that this case is governed by our decision in Curry v. Wilson, 405 F.2d 110 (9th Cir. 1968). I would therefore affirm the decision of the district court which denied the petition for habeas corpus. In Curry a state court conviction had been obtained on evidence which it was claimed was secured in violation of the accused’s constitutional rights. No objection to the introduction of this evidence was made at the trial. In the District Court of Appeal Curry’s contentions were considered on the merits and rejected. The deliberate by-pass rule was therefore not available under Warden v. Hayden, 387 U.S. 294, 297 n.3, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). On an appeal from a denial of writ of habeas corpus, this court then went on to consider whether or not there had been a deliberate waiver. Said the circuit court: “In our opinion the record of Curry’s trial conclusively shows that his counsel deliberately, as a matter of trial strategy, which proved to be successful, waived those grounds. What counsel did was not a mere by-passing of a contemporaneous objection rule. It was an affirmative decision to waive the objections that he might have raised. That waiver is binding on Curry.”" }, { "docid": "20064357", "title": "", "text": "not applying Boy-kin retroactively is the fact that: “ [A] defendant who is not afforded' an on-the-record examination is not left without recourse. He is free to argue in a post-conviction proceeding that his plea was not made intelligently and voluntarily and he must be given a hearing on this claim if it is not patently frivolous on the face of the record. [Emphasis added] In Commonwealth ex rel. West v. Myers, 423 Pa. 1, 7, 222 A.2d 918, 922 (1966), the Pennsylvania Supreme Court held that a relator who alleges facts which, if true, would entitle him to the issuance of a writ of habeas corpus, “must be afforded a hearing and the opportunity to establish the truth of his allegations.” Significantly, appellants in several recent cases before this Court have been afforded hearings under similar circumstances. Evidentiary hearings were conducted by district courts in United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968); and United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968). In McCloud we said at 857: “In the absence of an adequate record indicating that the trial court has properly ascertained whether a guilty plea was knowingly and voluntarily entered, it is incumbent upon the federal habeas corpus court to make this determination on the basis of all the relevant facts and circumstances.” In United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1969), an evidentiary hearing had previously been conducted by the state court. Accordingly, the case will be remanded to the District Court for an evidentiary hearing to determine whether relator’s guilty plea was entered intelligently and with an understanding of what it meant and its consequences, and to consider the other contentions raised by relator. . There is now on appeal in this Court a case which will raise before a court en banc the question of the burden of proof in pr e-Boyhin cases where petitioner claims that a guilty plea was not entered voluntarily, with an" }, { "docid": "8976654", "title": "", "text": "deprivation of Delbert Wads-worth’s right to counsel at trial. It is undisputed that he did not have the funds to hire an attorney. Two days after the trial in this matter, the district court appointed counsel on appeal because of the defendant’s indigency. Delbert Wadsworth’s further contention that we must reverse his conviction if the record does not affirmatively show that he knowingly and intelligently waived his right to counsel has long been recognized by the Supreme Court and the law of this circuit. An indigent criminal defendant has an absolute right under the sixth amendment to be represented by counsel or to represent himself if he so chooses. Faretta v. California, 422 U.S. 806, 807, 818, 95 S.Ct. 2525, 2527, 2532, 45 L.Ed.2d 562 (1975); United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). A defendant choosing to represent himself, however, must knowingly and intelligently waive his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; United States v. Rylander, 714 F.2d 996, 1005 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984). To establish a waiver of counsel, the record must show that an accused was offered counsel but intelligently and understandingly rejected the offer. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962) (“[presuming waiver from a silent record is impermissible”); see also United States v. Kennard, 799 F.2d 556, 557 (9th Cir.1986) (per curiam) (explicit waiver required for a second trial although defendant waived his right to counsel at his first trial). We also have held that a defendant can knowingly and intelligently waive his right to counsel only after he is aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation. Rylander, 714 F.2d at 1005 (quoting United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982)). To make a proper record for appellate review on the question whether a waiver was knowing and intelligent, the district court should discuss each of the three elements with the defendant in open court." }, { "docid": "12908661", "title": "", "text": "PER CURIAM: Appellant, who conducted his own defense, and was convicted by a California state jury of two counts of obstructing telephones (Cal.Penal Code, § 591) and one count of burglary (Cal.Penal Code, § 459), appeals from an order of the district court denying a petition for a writ of habeas corpus. Appellant claims that he did not intelligently waive counsel. Counsel was appointed for appellant and he appeared at the preliminary hearing and at the arraignment. On the day set for trial appellant expressed his dissatisfaction with his attorney. At any time he might have had the services of the attorney originally appointed. The Court however would not appoint a substitute and defendant, against the advice of two judges, deliberately chose to represent himself, although as he stated “I don’t think I have the intelligence to represent myself.” Now it is asserted that his waiver was not intelligent. Defendant knew that he had a right to a lawyer; he was emphatically warned not to be his own counsel; ******he was aware of the fact that he was charged with three felonies and that a conviction could result in long term imprisonment. He was furnished copies of the information and transcript of the preliminary hearing. Appellant was not legally trained but the record shows that he understood what charges were being made against him. Under the rule announced in Hodge v. United States, 414 F.2d 1040 (9 Cir. 1969), the waiver was intelligently made. An evidentiary hearing was not required. The facts here recited appear in the record. No contention is made that the record is not factually accurate. It is contended that the record does not show the facts required before there can be an effective waiver of counsel under the doctrine of Von Moltke v. Gillie, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Were the Von Moltke case controlling a reversal would be required. The rule of that case however, which involved a guilty plea, is not applicable to a ease where there has been a trial on the merits. The undisputed facts in the" }, { "docid": "13130703", "title": "", "text": "in which we may affirm a waiver of constitutional rights despite an inadequate waiver canvass. The majority fails to undertake such an analysis, and because of that failure comes to an erroneous conclusion. A. Procedural Requirements of Faretta and Boykin. The Constitution requires a state trial court to engage in careful inquiry before accepting a waiver of constitutional rights. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir.1969). In the context of waiver of the right to counsel, this careful inquiry is accomplished by means of a “Faretta canvass.” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (establishing the right to self-representation, but only where the record establishes that the accused “knows what he is doing and his choice is made with eyes open” (emphasis added)). To conduct a proper Faretta canvass, the trial court “must investigate as long and as thoroughly as the circumstances of the case before him demand.” Von Moltke, 332 U.S. at 723-724, 68 S.Ct. at 323. “A colloquy conducted in a rote and mechanical fashion ... may look reassuring on the record but will do little to protect the rights of the accused.” United States v. Balough, 820 F.2d 1485, 1488-90 (9th Cir.1987) (Kozinski, J., concurring). Thus, the court cannot meet the principles of Faretta by just going through the motions of merely eliciting the proper responses to boilerplate questions. Instead, “[a] judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” 332 U.S. at 724, 68 S.Ct. at 323. Despite the importance of the Faretta canvass, an inadequate Faretta inquiry by the trial court does not conclusively establish absence of effective waiver. Mason v. Pitchess, 440 F.2d 454 (9th Cir.1971). But we only rarely affirm a waiver of constitutional rights absent an adequate Faretta canvass on the record by the court to determine whether the waiver is understandingly and voluntarily offered. Balough, 820 F.2d at 1488-90. In fact, in federal court, when an accused’s" }, { "docid": "5899254", "title": "", "text": "PER CURIAM: This is an appeal from the denial of habeas corpus relief without an evidentiary hearing. We reverse. The appellant has complained of his conviction in the Orleans Parish Criminal District Court for the crime of aggravated escape. He was represented by court-appointed counsel, and pleaded guilty on August 18, 1967. There was no direct appeal, but appellant has exhausted his available post-conviction remedies. The appellant contends that his plea of guilty was wrongfully induced by threats made by an assistant district attorney, and by appointment, against his wishes, of defense counsel whom he had discharged in a previous criminal ease. The United States District Court denied habeas relief on grounds that “when the petitioner entered his plea of ‘guilty as charged’ he waived all non-jurisdictional defenses and became bound by his guilty plea.” This is correct as a general statement of law where the plea has been freely, voluntarily and understandingly made. In this case, however, the validity of the plea itself must be decided at an evidentiary hearing. As was pointed out in Lantz v. United States, 5th Cir. 1968, 417 F.2d 329, “A guilty plea being knowingly and voluntarily entered serves as an effective waiver of all non-jurisdictional defects in the proceedings up to that point. Askew v. State of Alabama, 5th Cir. 1968, 398 F.2d 825; Busby v. Holman, 5th Cir. 1966, 356 F.2d 75 (emphasis added).” See also Cooper v. Holman, 5th Cir. 1966, 356 F.2d 82; Kimbrough v. Beto, 5th Cir. 1969, 412 F.2d 981; Johnson v. Smith, 5th Cir. 1969, 414 F.2d 645. Reversed and remanded. . Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5th Cir. 1969, 409 F.2d 804, Part I. . Upon remand it is not imperative that the district court itself hold a hearing. The district court may properly withhold the" }, { "docid": "13130702", "title": "", "text": "has not been called into question, an inquiry such as that undertaken in the majority opinion is sufficient. But where, as here, the defendant was suicidal, depressed, and taking powerfully psychoactive drugs, we have an additional duty to determine whether these factors subverted his decision to such an extent that they precluded a truly free and rational choice. See United States v. Christensen, 18 F.3d 822, 825-26 (9th Cir.1994) (mental or emotional instability of defendant provoked suspicion that waiver of right to jury trial may not have been knowingly, voluntarily and intelligently tendered). To do so, we are obliged to follow the two-step procedure discussed in the following section: First, we must determine whether the state trial court’s transcript contains enough information for us to determine that the waiver was knowing intelligent and voluntary, i.e., if the Faretta canvass was adequate. Second, if the Faretta canvass was inadequate, as I believe it was, we must examine the entire record to determine whether, under the totality of the circumstances, this is one of the rare cases in which we may affirm a waiver of constitutional rights despite an inadequate waiver canvass. The majority fails to undertake such an analysis, and because of that failure comes to an erroneous conclusion. A. Procedural Requirements of Faretta and Boykin. The Constitution requires a state trial court to engage in careful inquiry before accepting a waiver of constitutional rights. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir.1969). In the context of waiver of the right to counsel, this careful inquiry is accomplished by means of a “Faretta canvass.” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (establishing the right to self-representation, but only where the record establishes that the accused “knows what he is doing and his choice is made with eyes open” (emphasis added)). To conduct a proper Faretta canvass, the trial court “must investigate as long and as thoroughly as the circumstances of the case before him demand.” Von Moltke, 332 U.S. at 723-724, 68 S.Ct. at 323. “A colloquy conducted in a rote and mechanical" }, { "docid": "5546299", "title": "", "text": "the sanity issue with full knowledge of the consequences. Indeed, the record strongly suggests that Meeks’ choice to try to establish a defense based upon his mental condition was probably the only tactic reasonably available to him. Other points either were not raised in the state trial, or, if raised, present no constitutional question. Affirmed. TRASK, Circuit Judge (concurring). I concur. I am not persuaded that the Constitution of the United States guarantees to a criminal defendant the right to represent himself. Neither do I read Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), or any other decision of the Supreme Court as holding that it does. Cf. People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, 493-494 (1972). Our court, however, has so held and I yield to those precedents. United States v. Pike, 439 F.2d 695 (9th Cir. 1971); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969). Perhaps the conflict is partially semantic. On the one hand the Supreme Court holds that a defendant may under controlled circumstances, competently and intelligently waive his constitutional right to assistance of counsel. Adams, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We have held that a defendant may under controlled circumstances, competently and intelligently insist upon a ‘‘constitutional right” to represent himself. Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142, aff’d on rehearing, 437 F.2d 955 (1971) (competent counsel appointed by court to assist in presentation of case); Hodge, supra, 414 F.2d at 1045 (advisory counsel). Our language may be couched in terms of the absolute right of self-representation, Arnold, supra, 414 F.2d at 1058, with which I disagree, but our holdings have been structured along narrower lines more consistent with the directives of the Supreme Court." }, { "docid": "12361238", "title": "", "text": "fairness or integrity of the judicial proceedings.” United States v. Camejo, 333 F.3d 669, 672 (6th Cir.2003) (citation and quotation marks omitted). In an unpublished opinion, this court has held that “[t]he elaborate waiver procedure outlined in McDowell does not apply to waiver of counsel during sentencing. The dangers of self-representation at trial are simply not present at sentencing.” United States v. Napier, Nos. 88-164, 88-1693, 88-1763, 88-1765, and 88-1766, 1989 WL 100865, at *5 (6th Cir. Sept.1, 1989). We need not decide whether this is a correct holding in the present case. The issue here is the narrower one of whether a defendant’s waiver of counsel at trial carries over to the sentencing phase. Other circuits have held that a valid waiver remains in effect at subsequent proceedings in the absence of an explicit revocation by the defendant or a change of circumstances that would suggest that the district court should make a renewed inquiry of the defendant. See, e.g., United States v. Unger, 915 F.2d 759, 762 (1st Cir.1990) (holding that the district court was free to find that the defendant’s earlier waiver was still in force at the sentencing hearing in the absence of intervening events); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989) (“Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver.”); Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969) (holding that, after a competent waiver of the right to counsel, a new waiver need not be obtained at every subsequent court appearance of the defendant); Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (same). This court has held, in a somewhat analogous situation, that where a magistrate judge has engaged in the McDowell colloquy with the defendant and found an effective waiver, the district judge is under no obligation to repeat the inquiry at trial in the absence of any indication from the defendant that he has had a change of heart. Modena, 302" }, { "docid": "1295572", "title": "", "text": "the trial itself. He continued the appointment of trial counsel, who appeared at every proceeding, actively participated in the examination of witnesses, initiated critical motions and rigorously advanced the defendant’s position at an extended competency hearing during the course of the trial itself. The defendant had whatever advantages accruing to his interest under Faretta together with all the advantages appointed counsel could bring to his case. A complete review of the record indicates he had a full and fair trial; that he was treated with patience and courtesy by the trial judge throughout the proceedings and that, in effect, he had the best of both worlds. In my opinion, to reverse his conviction in these circumstances would be an exaltation of form over substance and a dilution of the holdings of Hodge and Cooley. Hodge v. United States, 414 F.2d 1040, 1043 (9th Cir. 1974) (en banc), holds that we must look to the whole record in determining whether a defendant’s waiver of his right to counsel was knowingly and intelligently made. Cooley v. United States, 501 F.2d 1249 (9th Cir. 1974) and United States v. Gillings, 568 F.2d 1307 (9th Cir. 1978) agree that no particular interrogation, exchange or litany need be utilized in assuring that the defendant has in fact made an intelligent waiver. Although as a matter of good practice a trial judge “shall not grant a request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved”, United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir. 1974), a failure to conduct an interrogation of this nature is not, per se, reversible error. Cooley v. United States, supra, 501 F.2d at 1252. An evaluation of the whole record and the reasonable inferences which may be drawn therefrom shows that Aponte’s waiver of his right to counsel was knowingly and intelligently made. Aponte was no stranger to the legal process when he entered" }, { "docid": "12361239", "title": "", "text": "court was free to find that the defendant’s earlier waiver was still in force at the sentencing hearing in the absence of intervening events); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989) (“Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver.”); Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969) (holding that, after a competent waiver of the right to counsel, a new waiver need not be obtained at every subsequent court appearance of the defendant); Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (same). This court has held, in a somewhat analogous situation, that where a magistrate judge has engaged in the McDowell colloquy with the defendant and found an effective waiver, the district judge is under no obligation to repeat the inquiry at trial in the absence of any indication from the defendant that he has had a change of heart. Modena, 302 F.3d at 631. Both Modena and Napier lead us to adopt the rule set forth above by our sister circuits that a defendant’s waiver of counsel at trial carries over to subsequent proceedings absent a substantial change in circumstances. Because we find the rule to be a sound one, we adopt it as part of this circuit’s jurisprudence. McBride’s behavior at the sentencing hearing also sheds light on the continuing validity of his waiver of counsel. See United States v. Gangler, No. 95-2406, 1997 WL 618783, at *2 (6th Cir. Oct.6, 1997) (unpublished opinion) (holding that “waiver can be inferred from a defendant’s actions”) (citation omitted). At sentencing, the district court first asked McBride’s standby counsel if he believed that McBride understood the Presentence Report. After receiving an affirmative response, the court asked for any objections to the report, resulting in the following exchange: THE COURT: Mr. McBride, do you wish to have [standby counsel] say anything on your behalf? MCBRIDE: May I speak on my own behalf? THE COURT: You may speak on your" }, { "docid": "21897082", "title": "", "text": "GOODWIN, Circuit Judge: Lawrence S. Bittaker was convicted in a California court on a charge of burglary some four years before Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), confirmed to defendants in state prosecutions the constitutional right of self-representation earlier recognized in federal courts. Bittaker brought habeas corpus before Faretta. The district court held after Faretta that the state’s denial of Bittaker’s right of self-representation was a federal constitutional defect requiring the setting aside of his state conviction. The state appeals; we affirm. While the parties have briefed and argued the case in terms of the “retroactivity” of Faretta, it is not necessary to reach that question because the law of this circuit at the time of Bittaker’s state court trial had already been established in a fashion consistent with the Supreme Court’s statement of the law in Faretta. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967). This circuit had stated in federal cases that self-representation was a corollary of the Sixth Amendment right to counsel. Because the defendant could waive his Sixth Amendment right, we said he could also insist on self-representation as a constitutional, as well as a statutory, right. Until now, we have had no occasion to apply the federal constitutional right to state habeas petitioners. The Second Circuit, however, had done so. United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). We avoided the question in Meeks v. Craven, 482 F.2d 465, 466 (9th Cir. 1973), because the petitioner’s assertion of the right was inadequate. There can be little doubt, however, that, if squarely faced with the issue, we would have applied the right to self-representation to a state habeas petitioner. We had already characterized the right as a constitutional one in Arnold v. United States, 414 F.2d at 1058. The Supreme Court had previously applied virtually the entire Sixth Amendment to the states. Duncan v. Louisiana, 391 U.S." }, { "docid": "12910450", "title": "", "text": "KRAVITCH, Circuit Judge: The sixth amendment guarantees not only a defendant’s right to the assistance of counsel at a criminal trial, but also the right to waive counsel and personally present his or her own defense. The defendant faces serious risks by pursuing the latter course, and the Supreme Court has required that the decision to proceed pro se be made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. (citation omitted). In a federal habeas corpus petition, 28 U.S.C. § 2254, Eddie Strozier contends that his decision to waive counsel and represent himself at his criminal trial was not knowing and intelligent. The district court denied relief. On appeal, this court reversed and remanded for an evidentiary hearing on the waiver issue. Strozier v. Newsome, 871 F.2d 995 (11th Cir.1989) (“Strozier I”). At the evidentiary hearing before a magistrate, petitioner testified about the facts pertinent to waiver, as did Michael Whaley, the prosecutor at petitioner’s 1983 criminal trial, and William Auld, one of the three lawyers who handled petitioner’s case before trial. The magistrate found that petitioner had voluntarily relinquished his right to counsel before trial and recommended denial of habeas corpus relief. The district court adopted the report and recommendation denying relief, and petitioner again appeals. FACTUAL BACKGROUND Petitioner had three successive lawyers before his trial: an appointed public defender, Auld, and T.V. Mullinax. Petitioner testified at the evidentiary hearing that he became dissatisfied with his latest counsel, Mullinax, on May 16, 1983, the day his criminal trial was scheduled to begin, because he felt Mullinax had not adequately prepared a defense to the charges against him of aggravated assault with intent to rape and kidnapping. Before voir dire, Mullinax informed the court" }, { "docid": "23669521", "title": "", "text": "of Counsel. There is no doubt that Springer’s waiver of counsel before the initial trial was knowing, voluntary, and intelligent, nor is there any doubt that he was properly canvassed about that waiver. He does not argue to the contrary. His claim is that he should have been recanvassed just before the commencement of the retrial, even though he never hinted that he wished to reconsider his waiver, and, in fact, expressly stated that he would be representing himself. We disagree. Had Springer sought to withdraw his waiver before his retrial, there can be little doubt that he should have been permitted to do so. See Menefield v. Borg, 881 F.2d 696, 699-701 (9th Cir.1989) (waiver withdrawn for new trial hearing); United States v. Kennard, 799 F.2d 556, 557 (9th Cir.1986) (waiver withdrawn before retrial). That is not this case. Here, Springer asserted the right to self-representation and was granted that right; he never wavered in his resolve. As we said in Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970): While it is true that the Sixth Amendment right to counsel applies at all critical stages of the prosecution, including the sentencing stage, it does not follow that once the assistance of counsel in court has been competently waived, a new waiver must be obtained at every subsequent court appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings. We reached a similar conclusion in White v. United States, 354 F.2d 22 (9th Cir.1965). There counsel was waived, a plea was taken, sentence was imposed, and the sentence was then modified. We granted a writ of habeas corpus and ordered resentencing. At the new sentencing hearing, White continued to represent himself" }, { "docid": "23081399", "title": "", "text": "erred in failing to conduct a colloquy with Duarte to ensure that his jury waiver was made voluntarily, knowingly, and intelligently. Moreover, we conclude that this error warrants reversal because the district court’s failure to ensure the adequacy of Duarte’s jury waiver affected the basic framework of Duarte’s trial and we cannot determine whether this effect was harmless. See United States v. Annigoni 96 F.3d 1132, 1143 (9th Cir.1996) (explaining that reversal is required for “structural” errors which affect the framework of a trial and defy analysis by harmless-error standards); Cochran, 770 F.2d at 852 (warning that “retrospective inquiries to determine the validity of waivers are likely to be futile”); Christensen, 18 F.3d at 826 (“The district court’s failure to conduct an adequate colloquy ... constitutes reversible error.”). Accordingly, we reverse Duarte’s convictions and remand his case for a new trial. REVERSED and REMANDED. . In November 1993, Duarte filed a habeas petition alleging that his trial counsel had failed to file a timely notice of appeal despite Duarte’s request that he do so. On May 23, 1994, the district court denied Duarte's habeas petition after an evidentiary hearing at which Duarte was not represented by counsel. Duarte appealed the denial of his habeas petition. In United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir.1995), this court held that the district court erred in failing to appoint counsel to represent Duarte at the evidentiary hearing. Id. at 370. Pursuant to a joint motion by Duarte and the government, the district court on remand vacated and re-entered its original judgment and conviction in order to enable Duarte to file a new, timely notice of appeal. Duarte filed a timely notice of appeal on March 26, 1996, from the re-entered judgment and conviction." }, { "docid": "1295571", "title": "", "text": "commenced, it is difficult to overlook the substantial probability that the testimony of the psychiatrists concerning Aponte’s performance at trial had some influence on the court’s ruling. The manner in which a defendant conducts his defense cannot establish his state of mind at the time he opted for self-representation. Cooley v. United States, 501 F.2d at 1252. Since the trial judge may not allow a defendant to represent himself without first determining that there has been a waiver of the right to counsel, the decision on the defendant’s competence to waive cannot be deferred. Reversed and remanded. ENRIGHT, District Judge, dissenting: I respectfully dissent. This case presents the classic trial court dilemma involving pro se representation. The trial judge was faced with the difficult decision of accepting the defendant’s waiver and being reversed under Dujanovic or rejecting the waiver and being reversed under Faretta. In this case, the trial court accepted the firm, unequivocal demand of the defendant after patiently hearing him out, both in prior pretrial proceedings held months earlier and before and throughout the trial itself. He continued the appointment of trial counsel, who appeared at every proceeding, actively participated in the examination of witnesses, initiated critical motions and rigorously advanced the defendant’s position at an extended competency hearing during the course of the trial itself. The defendant had whatever advantages accruing to his interest under Faretta together with all the advantages appointed counsel could bring to his case. A complete review of the record indicates he had a full and fair trial; that he was treated with patience and courtesy by the trial judge throughout the proceedings and that, in effect, he had the best of both worlds. In my opinion, to reverse his conviction in these circumstances would be an exaltation of form over substance and a dilution of the holdings of Hodge and Cooley. Hodge v. United States, 414 F.2d 1040, 1043 (9th Cir. 1974) (en banc), holds that we must look to the whole record in determining whether a defendant’s waiver of his right to counsel was knowingly and intelligently made. Cooley v. United" } ]

[ { "docid": "22762408", "title": "", "text": "limited his ability to utilize the less formal rescission process to the five-year period after an alien has received an adjustment, but not to have placed such a limitation on his ability to effect removal proceedings. III. The judgment of the Board of Immigration Appeals, affirming the IJ’s order of removal is, accordingly, affirmed. AFFIRMED . The INS finally considered and rejected Asi-ka's appeal of its denial of temporary resident status in May 1993. In the course of considering Asika's appeal, the Eastern Service Center of the INS determined that the agency had improperly granted permanent resident status to Asika in 1989 and recommended that this adjustment be rescinded. J.A. 120, 150. However, the Washington District office of the INS declined to accept this invitation based on its conclusion, once again in error, that Asika had been granted permanent resident status as an immediate relative of a United States citizen. J.A. 122, 124, 150. . In particular, the INS asserted that Asika was inadmissible — and therefore deportable— because he filed for an adjustment of status in 1989(1) for the purpose of performing \"skilled or unskilled labor” without a certification from the Secretary of Labor, 8 U.S.C. § 1182(a)(5)(A), and (2) without \"a valid, unexpired immigrant visa,\" 8 U.S.C. § 1181(a). J.A. 324. . Asika also argues that the IJ's order of removal was in error because the IJ relied for his determination that Asika was inadmissible at the time of his adjustment on the fact that Asika lacked a valid entry document. Asika contends that under 8 U.S.C. §§ 1255a(4)(A), (b)(1)(C), and (d)(2), this ground for inadmissibility cannot be relied upon to deny “legalization-related” adjustments. We have no jurisdiction to consider this argument, however, because Asika failed to make it before the Board and, therefore, failed to exhaust \"all administrative remedies.” See 8 U.S.C. § 1252(d); Gallanosa v. United States, 785 F.2d 116, 119 (4th Cir.1986) (holding that the predecessor statute to section 1252(d) is jurisdictional). . The text of section 246(a) appears to require the Attorney General to rescind an adjustment of status if he determines that such" } ]

[ { "docid": "23563651", "title": "", "text": "of right....” ‘We have not addressed the applicability of 8 U.S.C. § 1252(d)(1) to habeas petitions.” Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880 n. 4 (9th Cir.2003). The district court thought otherwise. The court relied on Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001), in holding that Sun did not have to exhaust his administrative remedies. Castro-Cortez, however, concerned a situation in which no administrative remedies as of right were available, although the habeas petitioners could have but did not file a petition for review with this court. Id. at 1044-45. As § 1252(d)(1) only requires exhaustion of such administrative remedies as are available as of right, it had no application to the circumstances of the habeas petitioners in Castro-Cortes. Consistent with the limited language of § 1252(d)(1), Castro-Cortes did not address the application of that section to the habeas petitions before the court. Instead, Castro-Cortes considered only whether the plaintiffs were obligated to exhaust judicial remedies, applying with respect to that question the judicially created, prudential exhaustion doctrine applicable to all habeas petitions filed under 28 U.S.C. § 2241. See Castro-Cortes, 239 F.3d at 1047. We have also stated that: Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ. INA § 242(d), 8 U.S.C. § 1252(d). See also Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). Similarly, the petitioner must exhaust administrative remedies before raising the constitutional claims in a ha-beas petition when those claims are reviewable by the BIA on appeal, such as ineffective assistance of counsel claims. Liu, 55 F.3d at 425. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003). The supporting citation for Rojas-Garcia’s habeas exhaustion requirement, however, Liu v. Waters, 55 F.3d 421(9th Cir.1995), was an exhaustion case decided under former § 1105a(c), see Liu, 55 F.3d at 424, a provision quite similar, in some respects, to, but not the same as, § 1252(d)(1). Rojas-Garcia does not address directly whether § 1252(d)(1) applies to habeas petitions. One could infer that Rojas-Garcia was construing § 1252(d)(1) and was simply citing Liu" }, { "docid": "22763022", "title": "", "text": "Chen, that the IJ “unambiguously mischaracterized a central element of the record: Liu’s record with the Chinese police.” Gui Yin Liu, 475 F.3d at 138. Accordingly, we concluded that “[t]he IJ’s unambiguous mischarac-terization of the record raises a question of law.” Id. Upon reconsideration, we conclude that the IJ did not “unambiguously] mischar-acteriz[e]” the record in this case. As stated above, the IJ found that the report was not probative as to Liu’s departure date from China, and he gave several persuasive reasons for this finding, including that the report was not contemporaneously produced and did not affirmatively state that Liu was in China on that date. While we may not ultimately agree with the IJ’s characterization of the police report, it cannot be deemed an “unambiguous mischaracterization.” Any jurisdictional exception set forth in Xiao Ji Chen for unambiguous mischaracterizations of the record simply does not apply in this case, and we need not disturb it or any other holding in Xiao Ji Chen. Accordingly, we now conclude that we do not have jurisdiction to review the timeliness determination and that the asylum claim must be dismissed for lack of jurisdiction. B, Withholding of Removal and CAT Claims Although the timeliness issue is dispositive of Liu’s asylum claim, his withholding of removal and CAT claims are unaffected by that determination. In our prior opinion, we remanded all of the claims, concluding that the IJ’s adverse credibility determination was not supported by substantial evidence because the IJ’s finding that Liu’s testimony was insufficiently detailed was flawed. Gui Yin Liu, 475 F.3d at 138-39; see also Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007) (“The IJ’s factual findings, including adverse credibility findings, are reviewed under the substantial evidence standard of 8 U.S.C. § 1252(b)(4)(B).”). The government did not challenge that conclusion in its petition for rehearing. Accordingly, our conclusion that substantial evidence did not support the adverse credibility determination stands as to the withholding of removal and CAT claims. However, since our original opinion in this case was published, this Court decided Shi Liang Lin v." }, { "docid": "22429570", "title": "", "text": "to support the IJ’s adverse credibility finding. Accordingly, it alone cannot meet the heightened requirements for a frivolousness finding. In sum, because Liu was not given a proper opportunity to address most of the grounds cited for the frivolousness finding, and because the grounds she did have some opportunity to address do not, without the others, amount to sufficient evidence of frivolousness, we grant Liu’s petition and vacate the BIA’s finding that she submitted a frivolous application for asylum. III. Due Process Finally, we briefly address Liu’s separate due process claim. Liu argues that the IJ violated her due process rights by prejudging the merits of her claim and by assuming a prosecutorial role. See Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.2000) (“Due process requires that an alien receive a full and fair hearing.”). We review due process claims de novo. See id. As to the first argument, the IJ initially expressed skepticism that membership in Falun Gong could support an asylum claim. The IJ thus suggested that Liu focus on threats actually directed at her because further testimony about her practice of Falun Gong would be irrelevant. At the second hearing, however, the IJ decided to reopen testimony on this point to allow Liu to give her full account of her Falun Gong involvement. Thus, even assuming the IJ’s initial actions were improper, we conclude that Liu did not suffer the requisite prejudice to establish a due process violation. See id. at 728 (“Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings.”). As to Liu’s second argument, we have reviewed the record and found no evidence that the IJ improperly assumed a prosecutorial role. In actively questioning Liu to determine whether inconsistencies could be resolved, the IJ did not show a “predisposition to discredit” Liu’s testimony that would cause us to question the IJ’s impartiality. Garrovillas v. INS, 156 F.3d 1010, 1015 (9th Cir.1998). Again, Liu’s due process rights were not violated. CONCLUSION We hold that substantial evidence supports the IJ’s" }, { "docid": "22429552", "title": "", "text": "Gong, concluding these inconsistencies supported a finding of knowing fabrication. Finally, the BIA found that Liu was given adequate opportunities to address these grounds. The BIA thus affirmed its previous frivolousness finding. The present petition challenges both this finding and the earlier denial of Liu’s asylum and withholding of removal claims. We have jurisdiction under 8 U.S.C. § 1252(a)(1). STANDARD OF REVIEW “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review ‘is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). Because Liu’s application for relief was filed before May 11, 2005, pre-REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005). We review credibility findings for substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Whether the IJ complied with the BIA’s four procedural requirements for a frivolousness finding is a question of law we review de novo. See Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.2010). DISCUSSION Liu’s petition challenges the BIA’s denial of her asylum and withholding of removal claims and its finding that she filed a frivolous asylum application. We deny her petition as to asylum and withholding of removal because the IJ’s adverse credibility determination, as adopted by the BIA, was supported by substantial evidence. We grant her petition as to the frivolousness finding, however. Although the grounds for the adverse credibility determination overlap with those the IJ and BIA cited in support of the frivolousness finding, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” Id. The heightened substantive and procedural requirements for a frivolousness finding make that inquiry distinct, and we conclude those heightened requirements were not met here. We reject Liu’s final claim that the IJ violated her due process rights. I. Credibility An asylum applicant bears the burden of establishing her claim through credible evidence. See 8 U.S.C." }, { "docid": "22722275", "title": "", "text": "Rojas-Garcia waived his ability to raise these arguments by failing to exhaust his administrative remedies. We start by addressing the INS’s waiver argument. A Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ. INA § 242(d), 8 U.S.C. § 1252(d). See also Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). Similarly, the petitioner must exhaust administrative remedies before raising the constitutional claims in a habe-as petition when those claims are reviewable by the BIA on appeal, such as ineffective assistance of counsel claims. Liu 55 F.3d at 425. “The exhaustion requirement avoids premature interference with the agency’s processes and helps to compile a full judicial record.” Id. at 424 (citation and internal quotations omitted). . Here, Rojas-Garcia does not raise any arguments for the first time on appeal. In the “Notice of Appeal” filed with the BIA on May 23, 1996, Rojas-Garcia asserted in part that the IJ erred in admitting hearsay evidence and that INA § 212(a)(2)(C) was unconstitutionally vague. After the BIA dismissed Rojas-Garcia’s appeal, Rojas-Garcia filed a motion for reconsideration on August 16, 1999, arguing that the BIA’s summary dismissal of his appeal was improper and raising the ineffective assistance of counsel claim. Cf. Liu, 55 F.3d at 424 (“A petitioner must make a motion for the BIA to reopen before we will hold that he has exhausted his claims.”); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994) (refusing to hear ineffective assistance of counsel claim because petitioner had not filed a motion to reopen). The BIA has been given an opportunity to review and adjudicate all of Rojas-Garcia’s claims through either direct appeal or the motion for reconsideration. We therefore reject the government’s argument that Rojas-Garcia waived his arguments through procedural default. We now turn to Rojas-Garcia’s contentions. B Rojas-Garcia first challenges the BIA’s summary dismissal of his appeal. To avoid summary dismissal of an appeal filed with the BIA, a petitioner must state with sufficient specificity the ground for appeal. See Casas-Chavez v. INS, 300 F.3d 1088, 1089-90 (9th Cir.2002)., See" }, { "docid": "5144401", "title": "", "text": "to consider whether authorities of the PRC were (1) aware or (2) likely to become aware of Leng’s activities. 528 F.3d at 143. We find remand is proper here to reopen the record to permit Ge to present additional evidence as to the Chinese government’s likely future awareness of his involvement with the CDP. On remand, the IJ should determine whether Ge has made a substantial showing of 1) a well founded fear of future persecution, because 2) the Chinese government is likely to become aware of his membership in the CDP after his return to China. C. Due Process Claim. Ge asserts that the agency violated due process because the IJ initially made an oral ruling granting withholding of removal, but at a later hearing reversed this decision without explanation. While the IJ’s action is unexplained, we find that, even assuming arguendo that Ge’s due process claim has some merit, any injury suffered as a result has been cured because Ge has been afforded the requisite full and fair opportunity to litigate the merits of his withholding of removal claim before the BIA and this Court. See Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). D. Denial of Relief Under CAT. Finally, Ge contends that the BIA erred by “completely” failing to consider his claim for relief under CAT. We see, however, no reason to disturb the BIA’s finding that Ge failed to make any argument before it regarding CAT relief, and that the claim could therefore be considered as having been abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007). CONCLUSION We GRANT the petition for review, VACATE the decision of the BIA denying Ge’s claims for asylum and withholding of removal, and REMAND the case for further proceedings consistent with this opinion. The denial of relief under CAT is AFFIRMED." }, { "docid": "22429569", "title": "", "text": "frivolousness finding. See Khadka, 618 F.3d at 1002. As an initial matter, as the IJ herself repeatedly acknowledged, any fabrication could have been the work of Liu’s uncle rather than Liu. That would not meet the requirement that “the applicant deliberately fabricated” the information, nor would it satisfy the heightened scienter requirement for frivolousness determinations. See id. Moreover, although the date of Liu’s uncle’s arrest was “relat[edj to a material element” of her application, and could thus be used to support the adverse credibility finding, the arrest date is not itself a material element of the claim, as is required for a frivolousness finding. See id. Accordingly, the discrepancy regarding the arrest date does not alone constitute sufficient evidence to carry the government’s burden of proving frivolousness. The BIA also cited Liu’s failure to mention Falun Gong at her airport interview as a factor supporting the finding of frivolousness. Liu had some opportunity to address this issue, but as we have explained, even when coupled with other inconsistencies this omission was at best barely sufficient to support the IJ’s adverse credibility finding. Accordingly, it alone cannot meet the heightened requirements for a frivolousness finding. In sum, because Liu was not given a proper opportunity to address most of the grounds cited for the frivolousness finding, and because the grounds she did have some opportunity to address do not, without the others, amount to sufficient evidence of frivolousness, we grant Liu’s petition and vacate the BIA’s finding that she submitted a frivolous application for asylum. III. Due Process Finally, we briefly address Liu’s separate due process claim. Liu argues that the IJ violated her due process rights by prejudging the merits of her claim and by assuming a prosecutorial role. See Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.2000) (“Due process requires that an alien receive a full and fair hearing.”). We review due process claims de novo. See id. As to the first argument, the IJ initially expressed skepticism that membership in Falun Gong could support an asylum claim. The IJ thus suggested that Liu focus on threats actually" }, { "docid": "22429553", "title": "", "text": "a frivolousness finding is a question of law we review de novo. See Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.2010). DISCUSSION Liu’s petition challenges the BIA’s denial of her asylum and withholding of removal claims and its finding that she filed a frivolous asylum application. We deny her petition as to asylum and withholding of removal because the IJ’s adverse credibility determination, as adopted by the BIA, was supported by substantial evidence. We grant her petition as to the frivolousness finding, however. Although the grounds for the adverse credibility determination overlap with those the IJ and BIA cited in support of the frivolousness finding, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” Id. The heightened substantive and procedural requirements for a frivolousness finding make that inquiry distinct, and we conclude those heightened requirements were not met here. We reject Liu’s final claim that the IJ violated her due process rights. I. Credibility An asylum applicant bears the burden of establishing her claim through credible evidence. See 8 U.S.C. § 1158(b)(1)(B); Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th Cir.2004). We need discuss only three of the IJ’s grounds for her adverse credibility determination to conclude that Liu did not meet her burden. First, Liu’s failure to mention Falun Gong at her airport interview undermines her credibility to some degree. In Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004), we expressed a reluctance “to view statements given during airport interviews as valuable impeachment sources because of the conditions under which they are taken and because a newly-arriving alien cannot be expected to divulge every detail of the persecution he or she sustained.” We nonetheless concluded that substantial evidence supported the adverse credibility finding, explaining that the petitioner had not “simply failed to mention an instance of abuse or to provide as much detail in his airport interview,” but instead had “affirmatively denied any mistreatment by the Chinese Government ... and explained that he left China for financial reasons.” Id. at 963. We elaborated on Li in Yan Xia Zhu v. Mukasey, 537 F.3d" }, { "docid": "22453591", "title": "", "text": "a question of law”). Thus, to the extent Khan claims that the IJ based his decision on an unambiguous misstatement of pertinent facts in the record, we hold that he raises a question of law over which we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We also hold, however, that we are precluded from considering this challenge because Khan failed to raise this issue before the BIA, and the government raises issue exhaustion as an affirmative defense. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007); Xiao Ji Chen, 471 F.3d at 320 n. 1. Moreover, Khan’s attempt to challenge the IJ’s characterization of his work history does not present a question of law, because it merely quibbles with the IJ’s description of the facts. We therefore lack jurisdiction to review Khan’s claim regarding his work history. See Xiao Ji Chen, 471 F.3d at 329 (“[W]e remain deprived of jurisdiction to review decisions under the INA when the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion.”); see also Gui Yin Liu, 475 F.3d at 138 (noting that we lack jurisdiction where petitioner challenges the IJ’s characterization of his testimony). Finally, we lack jurisdiction to review Khan’s argument that in affirming the IJ’s decision without opinion, the BIA failed to comply with its streamlining regulation, 8 C.F.R. § 1003.1(e)(4)(i). See Kambolli v. Gonzales, 449 F.3d 454, 465 (2d Cir.2006) (“[W]e lack jurisdiction to review a claim that a single BIA member erred in deciding to resolve unilaterally an appeal of an IJ’s order and not to refer the case to a three-member BIA panel.”). 2. Motion to Reconsider Because we conclude that Khan raises a “question of law” over which we have jurisdiction, we turn to the merits of Khan’s petition, which challenges the BIA’s denial of his motion to reconsider. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (observing that “we are precluded from passing on the merits of the underlying [removal] proceedings” where petitioner appeals only BIA’s" }, { "docid": "22722274", "title": "", "text": "of Lozada, 19 I. & N. Dec. 637(BIA), aff'd, 857 F.2d 10 (1st Cir.1988). Rojas-Garcia appealed the BIA’s decision to this court. In an unpublished disposition, we dismissed the petition without prejudice for lack of jurisdiction. Rojas-Garcia v. INS, 4 Fed. Appx. 368, 2001 WL 125853 (9th Cir.2001) (unpublished disposition). We noted, however, that Rojas-Garcia could bring a claim under 28 U.S.C. § 2241. Id. On June 25, 2001, Rojas- Garcia filed a habeas petition in the District Court for the Western District of Washington. The district court adopted the recommendation of the Magistrate Judge and denied the petition. This appeal follows. II Rojas-Garcia raises four arguments on appeal. He contends (1) that the BIA’s summary dismissal of his appeal violated due process; (2) that INA § 212(a)(2)(C) is void for vagueness; (3) that the IJ denied Rojas-Garcia a fundamentally fair hearing by admitting hearsay evidence; and (4) that the ineffective assistance of his counsel denied him a fundamentally fair hearing. The INS argues that when Rojas-Garcia failed to file a brief with the BIA, Rojas-Garcia waived his ability to raise these arguments by failing to exhaust his administrative remedies. We start by addressing the INS’s waiver argument. A Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ. INA § 242(d), 8 U.S.C. § 1252(d). See also Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). Similarly, the petitioner must exhaust administrative remedies before raising the constitutional claims in a habe-as petition when those claims are reviewable by the BIA on appeal, such as ineffective assistance of counsel claims. Liu 55 F.3d at 425. “The exhaustion requirement avoids premature interference with the agency’s processes and helps to compile a full judicial record.” Id. at 424 (citation and internal quotations omitted). . Here, Rojas-Garcia does not raise any arguments for the first time on appeal. In the “Notice of Appeal” filed with the BIA on May 23, 1996, Rojas-Garcia asserted in part that the IJ erred in admitting hearsay evidence and that INA § 212(a)(2)(C) was unconstitutionally vague. After" }, { "docid": "23563652", "title": "", "text": "filed under 28 U.S.C. § 2241. See Castro-Cortes, 239 F.3d at 1047. We have also stated that: Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ. INA § 242(d), 8 U.S.C. § 1252(d). See also Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995). Similarly, the petitioner must exhaust administrative remedies before raising the constitutional claims in a ha-beas petition when those claims are reviewable by the BIA on appeal, such as ineffective assistance of counsel claims. Liu, 55 F.3d at 425. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003). The supporting citation for Rojas-Garcia’s habeas exhaustion requirement, however, Liu v. Waters, 55 F.3d 421(9th Cir.1995), was an exhaustion case decided under former § 1105a(c), see Liu, 55 F.3d at 424, a provision quite similar, in some respects, to, but not the same as, § 1252(d)(1). Rojas-Garcia does not address directly whether § 1252(d)(1) applies to habeas petitions. One could infer that Rojas-Garcia was construing § 1252(d)(1) and was simply citing Liu by analogy, given the similarity of language between former § 1105a(c) and § 1252(d)(1). This inference is strengthened by Rojas-Garcia’s citation to present § 1252(d) in the same paragraph as the Liu citation. Nevertheless, Rojas-Garcia does not expressly consider the application of § 1252(d)(1), so we are better off assuming that Rojas-Garcia did not settle a question it did not directly confront. Finally, in Barron v. Ashcroft, 358 F.3d 674, 678(9th Cir.2004), we held that for petitions on direct appeal “ § 1252(d)(1) mandates exhaustion and therefore generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” But Barron did not address the application of § 1252(d)(1) to habeas petitions. We therefore begin relatively afresh to determine whether § 1252(d)(1) requires exhaustion of administrative remedies before filing a habeas petition concerning a removal order. Our canvas is not a complete tabula rasa, however. Case law under the predecessor exhaustion provision, § 1105a(c), held that “habeas corpus review of an order of exclusion is" }, { "docid": "22763013", "title": "", "text": "he got on the line, then he says he got off the line, then he says he made it to the front of the counter. He indicated that nobody was at the counter. So it’s not entirely clear, but suddenly he’s outside the airport, apparently without inspection. Again, providing us with very few details or specifics as to how that could have happened. He went to a hotel. First, he could not recall how he got there. Later on, ... he recalled that a Mandarin speaking cab driver helped him get to the hotel and check in. But the next day he’s back at the airport purchasing a ticket and once again, it’s not clear how he was able to purchase the ticket. He doesn’t remember when he boarded the plane ... from Los Angeles to New York. He’s not certain of the date that he arrived in New York, but he does remember getting there sometime in the morning.... The IJ accordingly found that Liu had not met his burden of demonstrating by clear and convincing evidence that he had applied for asylum within one year of his arrival in the United States and was therefore ineligible for asylum. The IJ also denied Liu’s claims for withholding of removal and CAT relief, finding Liu’s testimony regarding the alleged persecution similarly vague and nonrespon-sive. The BIA affirmed the IJ’s decision without opinion. On January 30, 2007, we issued a per curiam opinion granting the petition for review and remanding the case to the BIA. Gui Yin Liu v. INS, 475 F.3d 135 (2d Cir.2007) (per curiam). We determined that the agency erred in finding that the asylum application was untimely. Although we recognized that, pursuant to 8 U.S.C. § 1158(a)(3) and 8 U.S.C. § 1252(a)(2)(D), our jurisdiction over such discretionary determinations was limited to “questions of law,” we cited Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 327 (2d Cir.2006), for the proposition that jurisdiction may arise in the case of “fact-finding which is flawed by an error of law, such as might arise where the IJ" }, { "docid": "22763014", "title": "", "text": "and convincing evidence that he had applied for asylum within one year of his arrival in the United States and was therefore ineligible for asylum. The IJ also denied Liu’s claims for withholding of removal and CAT relief, finding Liu’s testimony regarding the alleged persecution similarly vague and nonrespon-sive. The BIA affirmed the IJ’s decision without opinion. On January 30, 2007, we issued a per curiam opinion granting the petition for review and remanding the case to the BIA. Gui Yin Liu v. INS, 475 F.3d 135 (2d Cir.2007) (per curiam). We determined that the agency erred in finding that the asylum application was untimely. Although we recognized that, pursuant to 8 U.S.C. § 1158(a)(3) and 8 U.S.C. § 1252(a)(2)(D), our jurisdiction over such discretionary determinations was limited to “questions of law,” we cited Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 327 (2d Cir.2006), for the proposition that jurisdiction may arise in the case of “fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner’s failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did tes tify to that fact.” Id. at 331 (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004)). We then vacated the IJ’s determination regarding the timeliness of the asylum application, concluding that we had jurisdiction over the issue because the IJ “unambiguously mischaracterized a central element of the record: Liu’s record with the Chinese police.” Gui Yin Liu, 475 F.3d at 138. We reasoned that the police record “expressly stated that Liu ‘had no record of committing offenses against the criminal law up to the date when he left China on June 28, 1999, during his residence in China,’ ” and “[t]he IJ’s unambiguous mischaracterization of the record raises a question of law.” Id. (emphasis in original). We further concluded that the IJ’s adverse credibility determination with respect to the asylum, withholding of removal, and CAT claims was not supported by substantial evidence. Id. at 138-39." }, { "docid": "22768088", "title": "", "text": "As to Liu’s application for CAT relief (denied on the ground that Liu failed to show that it was more likely than not he would be tortured if removed to China), Liu’s brief on appeal makes no reference to his CAT application (or to torture generally), so that argument is deemed forfeited. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (stating that where petitioner “devotes only a single eonclusory sentence to the argument” in support of a claim for relief, “we ... deem his petition for review of the IJ’s finding as to [that] claim abandoned and do not consider it”). When, as here, the BIA affirms the IJ’s decision in all respects but one, the Court reviews the IJ’s decision “as modified by the BIA’s decision — that is, minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the BIA’s factual findings under the substantial evidence standard, including those “underlying the immigration court’s determination that an alien has failed to satisfy his burden of proof,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam), treating the findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). The BIA’s conclusion — that Liu failed to establish that it is “more likely than not” that he would be persecuted on account of his involvement in the June Fourth Movement — is supported by substantial evidence. Liu testified that after he was released from detention in 1991, he left and returned to China numerous times, and that the Chinese government issued a passport to him in 2002 because he had been out of detention “for many, many years.” Thus any presumption of future persecution that might be based on Liu’s detention in connection with the June Fourth Movement would be rebutted by a fundamental change in circumstances. See 8 C.F.R. § 208.16(b)(l)(i)(A) (presumption of a future risk of persecution may be rebutted by showing a" }, { "docid": "22757469", "title": "", "text": "upon a petition for review filed with an appropriate court of appeals in accordance with this section.”); Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). We disagree. The Padil-las do not challenge the manner in which discretionary authority is exercised. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002) (as amended). Rather, they challenge the existence of the authority. They contend that when affirming in a streamlined order, the BIA does not have the authority to change any aspect of the IJ’s decision, including the length of a voluntary departure period. We have jurisdiction to decide this question. See Zo-lotukhin v. Gonzales, 417 F.3d 1073, 1075 n. 2 (9th Cir.2005). The government argues, second, that we have no jurisdiction because the Padillas failed to exhaust their administrative remedies before the BIA. We may entertain a petition for review only if “the alien has exhausted all administrative remedies available as of right.” 8 U.S.C. § 1252(d)(1). We have interpreted the term “as of right” to require “an alien to exhaust his or her claims by raising them on direct appeal to the BIA.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir.2004) (emphasis in original). The Padillas assert the following three claims, none of which was argued to the BIA. The Padillas’ first claim is a violation of constitutional due process. They point out that the practical effect of the removal provisions of IIRIRA is that some families are split up when alien members of the family are removed and citizen members are permitted to stay. They point out that the hardship thus imposed on aliens who have been in the country for less than ten years is categorically irrelevant to the removal decision. They contend that this categorical refusal to consider hardship imposed violates due process. In order to provide the relief requested by the Padil-las, the BIA would have to find either the ten-year requirement of § 1229b(b)(l)(A) or the “stop-time” rule of § 1229b(d)(l) unconstitutional. The BIA does not have jurisdiction to determine the constitutionality of the statutes it administers. Liu v. Waters, 55 F.3d 421," }, { "docid": "22429571", "title": "", "text": "directed at her because further testimony about her practice of Falun Gong would be irrelevant. At the second hearing, however, the IJ decided to reopen testimony on this point to allow Liu to give her full account of her Falun Gong involvement. Thus, even assuming the IJ’s initial actions were improper, we conclude that Liu did not suffer the requisite prejudice to establish a due process violation. See id. at 728 (“Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings.”). As to Liu’s second argument, we have reviewed the record and found no evidence that the IJ improperly assumed a prosecutorial role. In actively questioning Liu to determine whether inconsistencies could be resolved, the IJ did not show a “predisposition to discredit” Liu’s testimony that would cause us to question the IJ’s impartiality. Garrovillas v. INS, 156 F.3d 1010, 1015 (9th Cir.1998). Again, Liu’s due process rights were not violated. CONCLUSION We hold that substantial evidence supports the IJ’s adverse credibility determination, adopted by the BIA, and thus deny Liu’s petition as to her asylum and withholding of removal claims. We grant Liu’s petition as to the frivolousness finding, vacate that finding and remand to the BIA for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal. GRANTED in part; DENIED in part; and REMANDED. . Falun Gong is a spiritual movement that blends Buddhist and Taoist philosophies with meditation and martial arts exercises. See Zhang v. Ashcroft, 388 F.3d 713, 715 (9th Cir.2004) (per curiam). . This interview was transcribed and is part of the administrative record. The officer provided Liu with an interpreter and gave her an opportunity to clarify her answers at the conclusion of the interview. Accordingly, the IJ and the BIA could use the interview transcript to impeach Liu's credibility even though the asylum officer did not testify at the hearing. See Singh v. Gonzales, 403 F.3d 1081, 1089 (9th Cir.2005). . The BIA did not rely on this ground in affirming the" }, { "docid": "22723027", "title": "", "text": "PER CURIAM. Jin Ming Liu, a citizen of China, petitions for review of the October 2004 denial by the Board of Immigration Appeals (“BIA”) of his motion to reconsider the BIA’s July 2004 order that affirmed without opinion an order of an immigration judge (“IJ”) that (1) denied his requests for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, and (2) directed his removal to China. According to Liu’s asylum application, he fled China to escape compulsory family planning and persecution on account of his Catholic faith. Liu’s petition contends that the BIA erred because there are “new facts” and because the birth of his three children “constitutes a change in [his] circumstances such that he is at risk of persecution under China’s coercive population planning policy if he returns to that country.” Liu and the government both ask us to review the merits of Liu’s asylum claim and the IJ’s adverse credibility determination based on the substantial evidence standard. However, Liu did not petition this Court for review of the BIA’s July 2004 summary affirmance, but rather of the BIA’s October 2004 denial of his motion to reconsider. Our review is, therefore, limited to the BIA’s denial of Liu’s motion to reconsider his asylum application; accordingly, we are “ ‘precluded from passing on the merits of the underlying exclusion proceedings.’ ” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (quoting Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001)). The BIA’s denial of a motion to reconsider is reviewed for abuse of discretion. See Kaur, 413 F.3d at 233. An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 233-34 (quoting Zhao, 265 F.3d at 93). A motion for reconsideration “is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument" }, { "docid": "12425151", "title": "", "text": "applicant’s past experience must be carried out on the most specific level—it is the details that reveal the severity of the particular situation. Liu v. Ashcroft, 380 F.3d 307, 313 (7th Cir.2004) (internal quotation marks and citation omitted) (emphasis.in original). As Liu acknowledges, many of the claims Mr. Tarraf makes in his testimony as a whole could support a finding of past persecution, and indeed, on another record, this court might conclude that they compel such a finding. The extremely scant details in Mr. Tarrafs testimony, however, prevent this court from reaching that conclusion in this case. We do not hold that a petitioner must provide a blow-by-blow, minute-by-minute account of his experiences in his home country in order to establish past persecution; we note only that something more than the general allegations of detention and torture provided to the IJ in this case will compel a finding of past persecution. On the record before us, the IJ’s conclusion that Mr. Tarraf did not carry his burden to establish past persecution is supported by substantial evidence. C. CAT Relief Mr. Tarrafs final claim in his petition is that the IJ denied him due process of law by summarily rejecting his request for CAT relief without applying the proper standards. This court lacks jurisdiction to review this claim, however, because it was not presented to the BIA. 8 U.S.C. § 1252(d)(1); see also Pjetri v. Gonzales, 468 F.3d 478, 481 (7th Cir.2006) (“Where ... a due process argument is based on procedural failings that the BIA is capable of addressing, the petitioner must exhaust his or her remedies at the BIA before bringing the claim in this court.”). Conclusion The agency’s conclusions that Mr. Tar-rafs in-court testimony was not credible and that, to the extent it could be credited, it did not demonstrate past persecution, are conclusions supported by substantial evidence on the administrative record as a whole. Therefore, we deny his petition for review and affirm the decision of the Board. Petition Denied Decision Affirmed . Mr. Tarraf did not seek relief from removal on the basis of this marriage" }, { "docid": "22958159", "title": "", "text": "persecution, thereby entitling Liu to a presumption of a well-founded fear of future persecution. In the absence of evidence rebutting Liu’s presumed well-founded fear of future persecution, the IJ granted Liu’s application for asylum. The Department of Homeland Security appealed the IJ’s asylum decision to the Board of Immigration Appeals. The BIA accepted the IJ’s credibility findings, but concluded that the IJ erred in holding that the mistreatment suffered by Liu rose to the level of persecution. Accordingly, the BIA vacated and reversed the IJ’s decision granting Liu’s asylum application. Liu now appeals. Under the circumstances of this case, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Alibasic v. Mukasey, 547 F.3d 78, 84-85 (2d Cir.2008). We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.2008). The BIA did not err in concluding that Liu failed to demonstrate his eligibility for asylum on account of his alleged resistance to the family planning policy. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir.2007) (in banc). Liu argues that the BIA misapplied Beskovic v. Gonzales, ante, by failing to analyze whether the beating occurred in the context of his arrest, and that the harm he suffered on account of his resistance to the family planning policy constituted persecution because it occurred “in the context” of his arrest and detention. Although the BIA emphasized that Liu’s mistreatment did not occur during his two-day detention without explicitly analyzing a potential connection to the arrest, we think that is implicit in the overall ruling. Thus, we find no error in the BIA’s conclusion that Liu failed to establish persecution because substantial evidence supports the BIA’s finding that, prior to his arrest and detention by local police, he suffered only minor bruising from an altercation with family planning officials, which required no formal medical attention and" }, { "docid": "22763018", "title": "", "text": "1252(a)(2)(D). In Xiao Ji Chen, we stated that “although the REAL ID Act restores our jurisdiction to review ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(a)(2)(D), we remain deprived of ju risdiction to review decisions under the INA when the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law.” 471 F.3d at 329. Although in Xiao Ji Chen we declined to “determine the precise outer limits of the term ‘questions of law,’ ” id. at 328, we stated that a question of law may “arise for example in fact-finding which is flawed by an error of law” or “where a discretionary decision is argued to be an abuse of discretion because it was made without rational justification or based on a legally erroneous standard,” id. at 329; however, in Xiao Ji Chen we also made clear that a petitioner cannot “us[e] the rhetoric of a ‘constitutional claim’ or ‘question of law* to disguise what is essentially a quarrel about fact-finding or the exercise of discretion,” id. at 330. In the initial briefing regarding the petition for review, Liu and amicus Catholic Charities argued that the IJ failed to “take into account [Liu’s] full testimony and the circumstances surrounding [his] filing of an asylum application,” mischaracterized the police record, and failed to assess the evidence Liu presented with respect to the one-year deadline in its totality. These arguments amount to “essentially a quarrel about [the IJ’s] fact-finding” with respect to the one-year deadline determination, and we accordingly lack jurisdiction to review that determination. Id. at 330. This is not to say that this Court could never have jurisdiction over a timeliness determination. For example, a petitioner could raise a reviewable “question of law” by arguing that the IJ used the wrong legal standard in coming to his determination. See Ilyas Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir.2007) (finding jurisdiction where “Khan[ ] argu[ed] that the IJ applied the wrong legal standard”). In this case, Liu does" } ]

[ { "docid": "23339892", "title": "", "text": "United States, 8 Cir., 24 F.2d 399. Cf. United States v. Fruit Growers Express Co., 279 U.S. 363, 49 S.Ct. 374, 73 L.Ed. 739; Krench v. United States, 6 Cir., 42 F.2d 354; United States v. Adams, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807. See under an analogous statute, 12 U.S.C.A. 592 [now 18 U.S.C.A. § 1005]; Bower v. United States, 9 Cir., 296 F. 694, certiorari denied 266 U.S. 601, 45 S.Ct. 90, 69 L.Ed. 462; Morse v. United States, 2 Cir., 174 F. 539, 20 Ann.Cas. 938; (Cf. United States v. Adams, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807, but see United States v. Darby, 289 U.S. 224, 53 S.Ct. 573, 77 L.Ed. 1137; Bozel v. United States, 6 Cir., 139 F.2d 153 ; Kennedy v. United States, 4 Cir., 275 F. 182. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Two sales of narcotics a day apart. “Tbe test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.” Wharton’s Criminal Law, 11th Ed., Sec. 34. See also Remaley v. Swope, 9 Cir., 100 F.2d 31, 32; Matthews v. Swope, 9 Cir., 111 F.2d 697. United States v. Lanza, 260 U.S. 377, 43 S.Ct 141, 67 L.Ed. 314; Cross v. North Carolina, 132 U.S. 131, 137, 10 S.Ct. 47, 33 L.Ed. 287; Hudspeth v. Melville, 10 Cir., 127 F.2d 373; by state court, Sligh v. Kirkwood, 05 Fla. 123, 61 So. 185, affirmed 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835. Ledbetter v. United States, 170 U.S. 606, 612, 18 S.Ct. 774, 42 L.Ed. 1162. United States v. Minuse, 2 Cir., 142 F.2d 388, 390." } ]

[ { "docid": "22578588", "title": "", "text": "the parties.” And see Nash v. United States, 2 Cir., 54 F.2d 1006, certiorari denied, 285 U.S. 556, 52 S.Ct. 457, 76 L.Ed. 945; Shuman v. United States, 5 Cir., 16 F.2d 457; Rice v. United States, 2 Cir., 35 F.2d 689, 695, certiorari denied, 281 U.S. 730, 50 S.Ct. 246, 74 L.Ed. 1146. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021. Egan v. United States, 52 App.D.C. 384, 395, 396, 287 F. 958, 969, 970; Moyer v. United States, 9 Cir., 78 F.2d 624, 630. See United States v. Cotter, 2 Cir., 60 F.2d 689, 692, certiorari denied, 287 U.S. 666, 53 S.Ct. 291, 77 L.Ed. 575. See 3 Wigmore, Evidence (2d Ed. 1923) §§ 1386,, 1387. 2 Wigmore, Evidence (2d Ed. 1923) § 1048. See General Finance, Inc. v. Stratford, (No. 7346, decided January 29, 1940) — App.D.C. —, 109 F.2d 843. 3 Wigmore, Evidence (2d Ed. 1923) § 1387(3); State v. Longstreth, 19 N.D. 268, 276, 121 N.W. 1114, 1117, Ann.Cas. 1912D, 1317; People v. Butler, 111 Mich. 483, 69 N.W. 734; State v. Willis, 71 Conn. 293, 41 A. 820 ; 2 Bishop’s New Criminal Procedure (2d Ed. 1913) § 1255. 2 Wigmore, Evidence (2d Ed. 1923) §§ 1048(3), 1049, 1050. See Miles v. United States, 103 U.S. 304, 308, 311, 26 L.Ed. 481; Sinclair v. District of Columbia, 20 App.D.C. 336, 338, 339, appeal dismissed, 192 U.S. 16, 24 S.Ct. 212, 48 L.Ed. 322; O’Neill v. United States, 8 Cir., 19 F.2d 322, 325; Miller v. United States, 7 Cir., 53 F.2d 316. See, also, Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090. Henderson v. State, 95 Ga. 326, 329, 22 S.E. 537, 538; Macomber v. Bigelow, 126 Cal. 9, 16, 58 P. 312, 315; State v. Hopkins, 13 Wash. 5, 42 P. 627; Rafferty v. State, 91 Tenn. 655, 665, 666, 16 S.W. 728, 730. 91 Tenn. 655, 665, 666, 16 S.W. 728, 730. Frisby v. United States, 38 App.D.C. 22, 26, 37 L.R.A.,N.S., 96, quoting 2 Bishop, Criminal Law, g 523;" }, { "docid": "20543139", "title": "", "text": "privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.” . “Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a ’single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” . “Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” . See also, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898) ; Berg v. United States, 176 F.2d 122 (9th Cir. 1949) ; Thompson v. United States, 283 F. 895 (3rd Cir. 1922). . Both Youngblood and Cargill, supra, circumscribe that general rule with the following exception: the government, upon a showing that disclosure of particular material would jeopardize national security or should be denied for other reasons may seek a protective order from the trial court in order to prevent disclosure to the defendant of that particular portion of the grand jury material. If the government seeks such a protective order, the court would conduct an in camera examination, and any material excised would be sealed in an envelope to await argument on appeal. See" }, { "docid": "20543107", "title": "", "text": "jury, has been amended in any material way, even with the consent of the defendant. However, a mere change in the form of the indictment is permitted. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930); and Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). Unless time is an essential element of the offense charged, time is considered as “form” and not a material part of the indictment. Where time is not an essential ingredient of the offense charged and the indictment charges facts showing the offense was committed before the finding of the indictment and within the statutory period of limitations, a defect in the allegation of time is one of form only. United States v. Gammill, 421 F.2d 185 (10th Cir. 1970); United States v. Arge, 418 F.2d 721 (10th Cir. 1969); Stewart v. United States, 395 F.2d 484 (8th Cir. 1968); Jacobs v. United States, 395 F.2d 469 (8th Cir. 1968); Butler v. United States, 197 F.2d 561 (10th Cir. 1952); Weatherby v. United States, 150 F.2d 465 (10th Cir. 1945); and Hale v. United States, 149 F.2d 401 (5th Cir. 1945). Unless the statute under which the indictment is brought either expressly makes it so or it appears clear that the statute is intended to have such effect, the exact time of the commission of the offense charged is not a substantive element of the proof. Huffman v. Siegler, 352 F.2d 370 (8th Cir. 1965). The essential elements of 15 U.S.C. § 77q(a), the statutory violations of Counts 3, 4, 5 and 6 are discussed infra (IV- — • Defects in Indictment). But here the date in the indictment is not a material allegation inasmuch as it is not descriptive of the offense and need not be precisely proven other than to establish that it occurred within the statute of limitations. Cf., Stewart v. United States, 395 F.2d" }, { "docid": "15410486", "title": "", "text": "the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). . Advisory Committee’s Note to F.R.Crim.P. 37(a) (2) ¶ 5. . See Coppedge v. United States, 369 U.S. 438, 441-442, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). . F.R.Crim.P. 32(a) (2). . Ibid. . Unless the right is intelligently and effectively waived, the defendant must be represented by counsel when sentence is imposed. Mempa v. Rhay, 389 U.S. 128, 129, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Daniel v. United States, 107 U.S.App.D.C. 110, 112, 274 F.2d 768, 770 (1960), cert. denied 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955); McKinney v. United States, 93 U.S.App.D.C. 222, 225, 208 F.2d 844, 847 (1953). And see 18 U.S.C. § 3006A(c); F.R.Crim.P. 44(a). . See, e. g., Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 186 n. 5, 295 F.2d 171, 173 n. 5 (1961); Smith v. United States, 106 U.S.App.D.C. 169, 170," }, { "docid": "22578589", "title": "", "text": "Butler, 111 Mich. 483, 69 N.W. 734; State v. Willis, 71 Conn. 293, 41 A. 820 ; 2 Bishop’s New Criminal Procedure (2d Ed. 1913) § 1255. 2 Wigmore, Evidence (2d Ed. 1923) §§ 1048(3), 1049, 1050. See Miles v. United States, 103 U.S. 304, 308, 311, 26 L.Ed. 481; Sinclair v. District of Columbia, 20 App.D.C. 336, 338, 339, appeal dismissed, 192 U.S. 16, 24 S.Ct. 212, 48 L.Ed. 322; O’Neill v. United States, 8 Cir., 19 F.2d 322, 325; Miller v. United States, 7 Cir., 53 F.2d 316. See, also, Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090. Henderson v. State, 95 Ga. 326, 329, 22 S.E. 537, 538; Macomber v. Bigelow, 126 Cal. 9, 16, 58 P. 312, 315; State v. Hopkins, 13 Wash. 5, 42 P. 627; Rafferty v. State, 91 Tenn. 655, 665, 666, 16 S.W. 728, 730. 91 Tenn. 655, 665, 666, 16 S.W. 728, 730. Frisby v. United States, 38 App.D.C. 22, 26, 37 L.R.A.,N.S., 96, quoting 2 Bishop, Criminal Law, g 523; Easterday v. United States, 53 App.D.C. 387, 292 F. 664, certiorari denied, 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523 ; 2 Wharton, Criminal Law (12th Ed. 1932) §§ 859, 860. D.C.Code (1929) tit. 6, § 86. See Read v. United States, 55 App. D.C. 43, 44, 299 F. 918, 921, certiorari denied, 267 U.S. 596, 45 S.Ct. 352, 69 L.Ed. 805: “In State v. Johnson and Johnson, 26 Iowa, 407, 417 (96 Am.Dec. 158), the court said: ‘It m.ust be borne-in mind that it is not necessary that the instrument shall have actual legal efficacy, but it is sufficient that, if genuine, it might apparently have such efficacy, or serve as. the foundation of a legal liability, .and,, if it might be taken as legal proof, it would have such apparent efficacy. True it is, there can be no forgery if the paper is invalid on its face, for it can then have no legal tendency to effect a fraud. If its invalidity, however, is to be made out by extrinsic facts, it" }, { "docid": "9629398", "title": "", "text": "sufficiently appears that the unlawful use of the mails was within the statutory period of limitations. Where time is not an essential ingredient of the offense, and the indictment charges facts showing the offense was committed within the statutory period of limitations, a defect in the allegation of time is one of form only. The motion was without merit and the order appealed from is affirmed. Rude v. United States, 10 Cir., 74 F.2d 673, 675; Rosenberg v. United States, 10 Cir., 120 F.2d 935, 937; Mitchell v. United States, 10 Cir., 142 F.2d 480, 481. Mitchell v. United States, 10 Cir., 142 F.2d 480, 481; McGinley v. Hudspeth, 120 F.2d 523; Bozel v. United States, 6 Cir., 139 F.2d 153, 156. Forthoffer v. Swope, 9 Cir., 103 F.2d 707, 708; Kachnic v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366; Rice v. United States, 5 Cir., 30 F.2d 681; Spirou v. United States, 2 Cir., 24 F.2d 796, 797; Weir v. United States, 7 Cir., 92 F.2d 634, 635, 114 A.L.R. 481; Oesting v. United States, 9 Cir., 234 F. 304-306; Ex parte Harrison, 55 Ariz. 347, 101 P.2d 457, 459. Thompson v. United States, 3 Cir., 283 F. 895, 898; United States v. McKinley, C.C.Or., 127 F. 168, 170; United States v. Gaag, D.C.Mont., 237 F. 728, 730, 731; United States v. Howard, D.C.Tenn., 132 F. 325, 335." }, { "docid": "13250372", "title": "", "text": "precise intent it believed he had. . In our view, an imprecise indictment is unlikely to expose a defendant to a second trial for the same offense because it is always possible to resort to the transcript of the first trial in order to prove the actual offense for which he was tried. See Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Clay v. United States, 326 F.2d 196, 199 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964). . A useful analogy is provided by the required degree of specificity in conspiracy cases. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Brown v. United States, 403 F.2d 489 (5th Cir. 1968), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970); United States v. Kahn, 381 F.2d 824 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967); United States v. Knox Coal Co., 347 F.2d 33 (3rd Cir.), cert. denied, Lippi v. United States, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962). . The indictment in Washington was returned under the housebreaking statute, Act of March 3, 1901, ch. 854, § 823, 31 Stat. 1323, D.C.Code § 22-1801 (1967), which was amended in 1967 by the present burglary statute. Act of December 27, 1967, Pub.L.No. 90-226, tit. VI, 81 Stat. 736, D.C.Code § 22-1801 (Supp. Ill, 1970). The form of indictment used in Washington would charge second degree burglary under the present statute. It is not infrequent, however, to find the offense of statutory burglary called either housebreaking or breaking and entering. .2 F. Wharton, supra note 2, § 407, at 25-26; 13 Am.Jur.2d Burglary § 36, at 341 (1964). The elements of such offenses are substantially the same. . Cady v. United States, 54 App.D.C. 10, 293 F. 829 (1923); Behel v. State, 40 Ala.App. 689, 122 So.2d 537 (1960); People v. Jordan, 204 Cal.App.2d 782, 786, 22 Cal.Rptr." }, { "docid": "853007", "title": "", "text": "Hearings on Watergate and Related Activities Before the Senate Select Comm, on Presidential Campaign Activities, 93d Cong., 1st Sess., pt. 1, at 127 — 28, 173-76, 203 (1973) [hereinafter cited as Watergate Hearings]; Trial Tr. at 1031. In light of this factual confusion and the problematic legality of McCord’s defense, we find no plain error in the failure to raise the defense sua sponte. Cf. United States v. Richardson, 148 U.S.App. D.C. 109, 459 F.2d 1133 (1972). . See United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107. There are, to be sure, some consitutional overtones to defenses based on criminal responsibility. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1958); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, none of these overtones are implicated in McCord’s alleged defense. See United States v. Moore, 158 U.S. App.D.C. 375, 486 F.2d 1139, 1240 (1973) (Wright J. dissenting). . Cf. Kaufman v. United States, 394 U.S. 217, 83 S.Ct. 822, 9 L.Ed.2d 837 (1969); United States v. Tortorella, 480 F.2d 764, 771 (2d Cir. 1973); United States v. Baxter, 492 F.2d 150, 170 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). . Cf. Nagell v. United States, 354 F.2d 441, 448 — 449 (5th Cir. 1966); Smith v. United States, 109 U.S.App.D.C. 28, 33, 283 F.2d 607, 612 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961) (Bazelon, J. concurring). . See Watergate Hearings at 125-248. . See note 16 supra. . Cf. United States v. Baker, 139 U.S.App. D.C. 126, 130, 430 F.2d 499, 503, cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); Smith v. United States, 109 U.S.App. D.C. 28, 283 F.2d 607 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387," }, { "docid": "2130763", "title": "", "text": "least the rudiments of accepted manners toward subordinates. Affirmed. . Green v. Baughman, 94 U.S.App.D.C. 291, 214 F.2d 878 (1954). . Baughman v. Green, 97 U.S.App.D.C. 150, 229 F.2d 33 (1950). . 58 Stat. 387 (1944), as amended, 5 U.S. C.A. § 851 et seq. . 58 Stat. 390 (1944), as amended, 5 U.S.C.A. § 863. . 91 U.S.App.D.C. 266, 199 F.2d 783 (1952). . Supra note 2. . Lloyd-La Follette Act, 37 Stat. 539 (1912), as amended, 5 U.S.C.A. § 652 (a); Veterans’ Preference Act, supra note 4. . 90 U.S.App.D.C. 171, 174, 194 F.2d 876, 879 (1952), certiorari denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952). . Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140 (1921) ; Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900) ; Keyton v. Anderson, 97 U.S.App.D.C. 178, 229 F.2d 519 (D.C.Cir.1956); Benenati v. Young, 95 U.S.App.D.C. 120, 220 F.2d 383 (D.C.Cir.1955); Williams v. Cravens, 93 U.S.App.D.C. 380, 210 F.2d 874 (D.C. Cir.1954), certiorari denied 348 U.S. 819, 75 S.Ct. 30, 99 L.Ed. 646 (1954); Black-mon v. Lee, 92 U.S.App.D.C. 268, 205 F.2d 13 (D.O.Cir.1953); Powell v. Brannan, 91 U.S.App.D.C. 16, 196 F.2d 871 (D.C.Cir.1952); Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364 (D.C. Cir.1949), certiorari denied 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1919); Levy v. Woods, 84 U.S.App.D.C. 138, 171 F.2d 145 (D.C.Cir.1948)." }, { "docid": "853008", "title": "", "text": "overtones are implicated in McCord’s alleged defense. See United States v. Moore, 158 U.S. App.D.C. 375, 486 F.2d 1139, 1240 (1973) (Wright J. dissenting). . Cf. Kaufman v. United States, 394 U.S. 217, 83 S.Ct. 822, 9 L.Ed.2d 837 (1969); United States v. Tortorella, 480 F.2d 764, 771 (2d Cir. 1973); United States v. Baxter, 492 F.2d 150, 170 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). . Cf. Nagell v. United States, 354 F.2d 441, 448 — 449 (5th Cir. 1966); Smith v. United States, 109 U.S.App.D.C. 28, 33, 283 F.2d 607, 612 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961) (Bazelon, J. concurring). . See Watergate Hearings at 125-248. . See note 16 supra. . Cf. United States v. Baker, 139 U.S.App. D.C. 126, 130, 430 F.2d 499, 503, cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); Smith v. United States, 109 U.S.App. D.C. 28, 283 F.2d 607 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961); Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951). See also Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956) (dictum). . United States v. Lemonakis, 158 U.S.App. D.C. 162, 485 F.2d 941, 964 (1973). . Watergate Hearings at 242. See also id. at 140-41, 232, 247. . See Sentencing Tr. (March 23, 1973), at 3-6; Watergate Hearings at 125-248. . Watergate Hearings at 296 (Statement of Gerald Alch). See also id. at 150, 247, 320-04. . Cf. United States v. Crane, 445 F.2d 509, 519 (5th Cir. 1971); Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652 (1951). . See pp. 343-345 supra. Furthermore, as indicated in his letter to Judge Sirica, Sentencing Tr. (March 23, 1973), at 5, and in his testimony before the Senate Watergate Committee, Watergate Hearings at 198, 242; see id. at 127-29, 138-39, 144, 148, 157, 199, McCord indicated substantial knowledge of Magruder and Porter’s perjury and in particular he admitted that he knew" }, { "docid": "2499626", "title": "", "text": "for the same offense on that date. Defendant was at all times fully aware of the actual date of the commission of the alleged wrongful act and could not have been prejudiced in any substantial rights by the amendment, since the mere correction of the date did not in any manner broaden the charge. Time is not of the essence in connection with the charge for this crime, and the date in an indictment such as this was not a material allegation inasmuch as the time of the theft is not descriptive of the offense and need not be precisely proven other than to prove it occurred within the limitation period. This more modern rule has long existed in the federal courts. See and compare Dean Rubber Mfg. Co. v. United States, 356 F.2d 161, 168 (8th Cir. 1966); Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965); Whiteside v. United States, 346 F.2d 500 (8th Cir. 1965); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964); Brilliant v. United States, 297 F.2d 385, 390 (8th Cir. 1962), cert. denied, 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275 (1962); Alexander v. United States, 271 F.2d 140 (8th Cir. 1959); Berg v. United States, 176 F.2d 122, 126 (9th Cir. 1949), cert. denied, 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537 (1949); Hale v. United States, 149 F.2d 401, 403 (5th Cir. 1945), cert. denied, 326 U.S. 732, 66 S.Ct. 40, 90 L.Ed. 436 (1945). By reason of our constitutional provisions, an indictment cannot be amended in a substantial material way so as to broaden or change the charge or to prejudice an accused by failing to fully apprise him of the charge against him, but it would be wholly impractical and not required by any rule of law to vitiate this indictment by reason of the correction of a clerical error that was not of the essence in connection with the charge of the commission of the crime. From the cases cited, it appears that this variance between the indictment and the proof would not have been" }, { "docid": "23400556", "title": "", "text": "the investor and that the mails were used in those instances where the impact occurred.” United States v. Schaefer (7th Cir., 1962), 299 F.2d 625, 629. . United States v. Birrell (S.D.N.Y., 1967), 266 F.Supp. 539, 544. . United States v. Hughes (S.D.N.Y., 1961), 195 F.Supp. 795, 798. . Cf. United States v. Universal C. I. T. Credit Corp. (1952), 344 U.S. 218, 224, 73 S.Ct. 227, 97 L.Ed. 260; United States v. Ketchum (2d Cir., 1963), 320 F.2d 3, 7. . See cases cited in Hamer v. United States (9th Cir., 1959), 259 F.2d 274, 279. . Committee on Interstate and Foreign Commerce. H.R.Rep.No.85, 73d Cong., 1st Sess. (1933) 24. . See Communist Party of United States v. Subversive Activities Control Board (1961), 367 U.S. 1, 97-102, 81 S.Ct. 1357, 6 L.Ed.2d 625; Lewis Publishing Co. v. Morgan (1913), 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190; United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Burroughs v. United States (1934), 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484. . Farrell v. United States (9th Cir., 1963), 321 F.2d 409, 419, cert. den. 375 U.S. 992, 84 S.Ct. 631, 11 L.Ed.2d 478; Frank v. United States (10th Cir., 1955), 220 F.2d 559, 563; Bobbroff v. United States (9th Cir., 1953), 202 F.2d 389, 391. . See eases cited, 35 C.J.S. False Pretenses § 52, including People v. Gordon (2d Dist., 1945), 71 Cal.App.2d 606, 163 P.2d 110, 124; State v. Hastings (1950), 77 N.D. 146, 41 N.W.2d 305; Corscot v. State (1922), 190 Wis. 661, 671, 178 N.W. 465. . Mayne was surely in a position where he is deemed to have known that which could have been learned by inquiry reasonably to be expected. See cases cited infra, fn. 23. . See United States v. Ross (2d Cir., 1963), 321 F.2d 61, 65, cert. den. 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123; Irwin v. United States (9th Cir., 1964), 338 F.2d 770, 774, cert. den. 381 U.S. 911, 85 S.Ct. 1530, 14 L.Ed.2d 433; United States v. Schaefer (7th" }, { "docid": "11986566", "title": "", "text": "52 S.Ct. 647, 76 L.Ed. 1298 (1932) ; United States v. Grunewald, 164 F.Supp. 644 (S.D.N.Y.1958); People v. Corbo, 17 A.D.2d 351, 234 N.Y.S.2d 662 (1962); Rafferty v. State, 91 Tenn. 655, 16 S.W. 728 (1891). See generally McCormick, Evidence, § 131 (1954); Annot. 5 A.L.R.2d 1404 (1949). . See the cases cited supra note 20. . Compare, e. g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). . Compare, e. g., Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). . Compare, e. g., Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 3S5 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). . Compare, e. g., Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). . Compare, e. g., Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). . Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1983), quoting Maguire, Evidence of Guilt 221 (1959). . Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310. December 30, 1966. See also McLindon v. United States, 117 U.S.App.D.C. 283, 285-286, 329 F.2d 238, 240-241 (1964); Smith v. United States, 117 U.S.App.D.C. 1, 3, 324 F.2d 879, 881 (1963), cert. denied 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964); Payne v. United States, 111 U.S.App.D.C. 94, 97-98, 294 F.2d 723, 726-727, cert. denied 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961). . Smith v. United States, supra note 28, 117 U.S.App.D.C. at 3, 324 F.2d at 881. . See, e. g., Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965). . McLindon v. United States, supra note 28, 117 U.S.App.D.C. at 286 n. 2, 329 F.2d at 241 n. 2. . See" }, { "docid": "20075949", "title": "", "text": "States, 6 Cir., 223 F.2d 699, 702, the court said: “Since the only question presented by the motion was a legal one, and not factual, it was not necessary that the appellant be brought [from prison] to the District Court for a hearing.” (Citing United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232.) See also Edgerly v. Kennedy, 7 Cir., 215 F.2d 420; Tatum v. United States, 9 Cir., 204 F.2d 324; Garcia v. United States, 9 Cir., 197 F.2d 687; United States v. Knight, D.C., 127 F.Supp. 269; United States v. Williams, D.C., 127 F.Supp. 420; United States ex rel. Caminito v. Murphy, D.C., 127 F.Supp. 689; United States ex rel. Peters v. Carson, D.C., 126 F.Supp. 137, 140. It should be kept in mind that the plaintiffs base their present action for money damages on the Federal civil rights statutes and that those statutes give a right of civil action only for deprivation of rights, privileges, and immunities secured by the Constitution and laws of the United States. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 89 L.Ed. 1495; Snowden v. Hughes, 321 U.S. 1, 15, 64 S.Ct. 397, 88 L.Ed. 497; Ortega v. Ragen, 7 Cir., 216 F.2d 561; Francis v. Lyman, 1 Cir., 216 F.2d 583; Mueller v. Powell, 8 Cir., 203 F.2d 797; Moffett v. Commerce Trust Co., 8 Cir., 187 F.2d 242, certiorari denied 342 U.S. 818, 72 S.Ct. 32, 96 L.Ed. 618; Bottone v. Lindsley, 10 Cir., 170 F.2d 705, 707; Ginsburg v. Stern, D.C., 125 F.Supp. 596, affirmed 3 Cir., 225 F.2d 245; Gordon v. Garrson, D.C., 77 F.Supp. 477; 68 Harvard Law Review (May 1955) pp. 1229-1240. See also opinions of this court in Kenney v. Killian, 133 F.Supp. 571; Kenney v. Fox, 132 F.Supp. 305; and Kenney v. Hatfield, D.C., 132 F.Supp. 814, all affirmed 6 Cir., 232 F.2d 288. Defendants Lyle and Ethel Jennings, who claimed that they were assaulted and robbed by the plaintiffs, merely acted as witnesses" }, { "docid": "2941416", "title": "", "text": "he would have to provide a defense in regard to matters which occurred on July 21, 1966. The meaning of the language “on or about” in an indictment has been the subject of judicial review on surprisingly few occasions. The Court of Appeals for the 9th Circuit in discussing this issue said in Yaw v. United States, 228 F.2d 382, (9th Cir. 1955), at page 383: “The phrase ‘on or about’ a date stated in the indictment as fixing the time of the crime, is held by the Second Circuit to be within a few weeks of the ‘on or about’ date. United States v. Tramaglino, 2 Cir., 197 F.2d 928, certiorari denied 1952, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670. In the Third Circuit proof of a felonious sale of liquor on March 4th or 5th was held sufficient on an indictment charging it to have occurred ‘on or about the 11th day of March, 1921’. Thompson v. United States, 3 Cir., 1922, 283 F. 895, 896. The Supreme Court, in Ledbetter v. United States, 170 U.S. 606, at page 612, 18 S.Ct. 774, at page 776, 42 L.Ed. 1162, stated: ‘Neither is it necessary to prove that the offense was committed upon the day alleged, unless a par ticular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient.’ ” As pointed out previously, the appellants obviously knew throughout the trial, which resulted in their convictions, of the fact that July 21, 1966 was a date as pertinent to the charges as the date July 23, 1966 contained in the indictment. We are satisfied that there was no fatal variance in the indictment; there was no fatal variance in the proofs and the appellants were not prejudiced by any variance in the proofs of which they had knowledge at least one year in advance. The other allegations of error do not require discussion. Judgment affirmed. . 18 U.S.C. § 2." }, { "docid": "21299491", "title": "", "text": "and 174, United States Code).” Thus, in both counts the time is stated to be in or about February, 1959, and the place is stated to be in the Southern District of New York. In addition, the drug is named and the approximate weight, 10 kilograms (22 pounds), is indicated. The place is sufficiently alleged. Burk v. United States, 4 Cir., 1950, 179 F.2d 305, 306; Beard v. United States, 1936, 65 App.D.C. 231, 82 F.2d 837, 840, certiorari denied 1936, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382. The time is adequately alleged. Ledbetter v. United States, 1898, 170 U.S. 606, 612, 18 S.Ct. 774, 42 L.Ed. 1162; Hale v. United States, 5 Cir., 1945, 149 F.2d 401, 403, certiorari denied 1945, 326 U.S. 732, 66 S.Ct. 40, 90 L.Ed. 436; United States v. Sutter, D.C.S.D.Cal., Central Division, 1954, 127 F.Supp. 109, 115. This motion must be denied. III. Motions for Discovery and Inspection A. Defendants Tuminaro, Fernandez, Petillo These defendants seek inspection and the opportunity to make copies of— (1) Written statements and memoranda of conversations and interrogations of these defendants and co-conspirators taken from them and in the possession of the United States Attorney. (2) Copies of testimony given in prior proceedings by any defendant, co-conspirator, or any witness, used by the government and “which are a matter of public record.” (3) Any and all other records, papers, and documents of any kind obtained by the government from any of the defendants and intended to be used at the trial. (4) . Copy of statements, if any, made by any proposed witness or witnesses relative to overt act designated “8” in the Eighth Count of the indictment. (5) The reported conversation if said alleged conversation was mechanically recorded. (6) The recording device, if any, which recorded or intercepted the alleged conversation. (7) To inspect the alleged narcotic drugs set forth in the various counts and to inspect and copy the laboratory reports. B. Defendant Di Pietro Defendant Di Pietro seeks to examine and copy the written statements and transcribed testimony given by any co-defendant or co-conspirator" }, { "docid": "16871346", "title": "", "text": "S.Ct. 248, 71 L.Ed. 520 (1927); and Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). . See, e. g., Restatement, Torts § 113. . The answer to this question is unrelated to the fact that the house is later found to be unoccupied. The entry is lawful or unlawful at the time it is made, and a subsequent search has the same legal character as the entry which made it possible. Whitley v. United States, 99 U.S.App.D.C. 159, 237 F.2d 787 (D.C.Cir., 1956); Mills v. United States, 90 U.S.App.D.C. 365, 367, 196 F.2d 600, 602 (D.C.Cir., 1952), certiorari denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952). . 103 U.S.App.D.C. 48, 254 F.2d 751 (D.C.Cir., 1958), certiorari denied 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). . Mattus v. United States, 11 F.2d 503 (9th Cir., 1926), Appell v. United States, 29 F.2d 279 (5th Cir., 1928), and Mul-laney v. United States, 82 F.2d 638 (9th Cir., 1936), were narcotics cases similar on the facts to our Smith case, supra. . Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949). . 357 U.S. 493, 497-499, 78 S.Ct. 1253, 1256-1257 (1958). . 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17 (D.C.Cir., 1949), affirmed 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). . Supra, 85 U.S.App.D.C. at page 402, 179 F.2d at page 404. . Supra, 357 U.S. at page 498, 78 S.Ct. at page 1256. . 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). . 286 U.S. 1, 5, 52 S.Ct. 466, 467, 76 L.Ed. 951 (1932). . E. g., a barn, Steeber v. United States, 198 F.2d 615, 33 A.L.R.2d 1425 (10th Cir., 1952), and a smokehouse, Roberson v. United States, 165 F.2d 752 (6th Cir., 1948). . 269 U.S. 20, 33, 46 S.Ct. 4, 6 (1925). . 100 U.S.App.D.C. 237, 238, 243 F.2d 660, 661 (1957). . 170 F.2d 32 (4th Cir., 1948), certiorari denied 336 U.S. 912, 69 S.Ct. 601, 93 L.Ed. 1076 (1949). . 53 F.2d 184 (4th Cir., 1931). ." }, { "docid": "3513726", "title": "", "text": "F.R.D. 367, 372; see also Overholser v. De Marcos, 80 U.S.App.D.C. 91, 149 F.2d 23, 26, certiorari denied 325 U.S. 889, 65 S.Ct. 1579, 89 L.Ed. 2002. In the case at bar Mr. Carey in effect wished to be represented by the attorney for the corporation, whose interests were identical with his own, and also act as his own attorney. The trial judge may well have thought this would cause delay and confusion in the trial. We cannot see any abuse of discretion in the way he handled the matter, nor any prejudice resulting to the defendants. The remaining contentions of the appellants require little discussion. In point three it is urged that the indictment is multiplicitous because each false statement is alleged as a separate count. They contend that only one crime was committed since all the false statements related to deliveries made under a single contract. The cases relied upon, Ex parte Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 and United States v. Universal C. I. T. Credit Corporation, 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260, are readily distinguishable. The applicable rule is stated in Doherty v. United States, 10 Cir., 193 F.2d 487, 488; Berg v. United States, 9 Cir., 176 F.2d 122, 125, certiorari denied 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537; United States v. Marzani, D.C.D.C., 71 F.Supp. 615, 618, affirmed Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, rehearing granted and decision adhered to, 336 U.S. 922, 69 S.Ct. 653, 93 L.Ed. 1084. Furthermore, any objection as to multiplicity of the indictment was waived by not raising it before trial, Anderson v. United States, 6 Cir., 189 F.2d 202, 204. Since the appellants could have been fined $10,000 on any one count and Carey could have been given a prison sentence under 18 U.S.C.A. § 1001, it is obvious that they have not been prejudiced by the sentences imposed. We find no reversible error in the rulings on evidence, the exclusion of which is complained" }, { "docid": "20543140", "title": "", "text": "dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” . “Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” . See also, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898) ; Berg v. United States, 176 F.2d 122 (9th Cir. 1949) ; Thompson v. United States, 283 F. 895 (3rd Cir. 1922). . Both Youngblood and Cargill, supra, circumscribe that general rule with the following exception: the government, upon a showing that disclosure of particular material would jeopardize national security or should be denied for other reasons may seek a protective order from the trial court in order to prevent disclosure to the defendant of that particular portion of the grand jury material. If the government seeks such a protective order, the court would conduct an in camera examination, and any material excised would be sealed in an envelope to await argument on appeal. See also, Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840 (1966). . See also, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), holding that the informer’s identity need not be disclosed at a preliminary hearing to determine probable cause for arrest or for a search warrant. . In Roviaro, the court stated that “ * * no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his de fense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” At 62, 77 S.Ct. at 628-629. . It is interesting to note that a similar motion was denied in United States v. Mahler, 254 F.Supp. 581 (S.D.N.Y.1966). There, the Court refused to suppress the books and records of a broker dealer which" }, { "docid": "16871347", "title": "", "text": "to our Smith case, supra. . Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949). . 357 U.S. 493, 497-499, 78 S.Ct. 1253, 1256-1257 (1958). . 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17 (D.C.Cir., 1949), affirmed 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). . Supra, 85 U.S.App.D.C. at page 402, 179 F.2d at page 404. . Supra, 357 U.S. at page 498, 78 S.Ct. at page 1256. . 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). . 286 U.S. 1, 5, 52 S.Ct. 466, 467, 76 L.Ed. 951 (1932). . E. g., a barn, Steeber v. United States, 198 F.2d 615, 33 A.L.R.2d 1425 (10th Cir., 1952), and a smokehouse, Roberson v. United States, 165 F.2d 752 (6th Cir., 1948). . 269 U.S. 20, 33, 46 S.Ct. 4, 6 (1925). . 100 U.S.App.D.C. 237, 238, 243 F.2d 660, 661 (1957). . 170 F.2d 32 (4th Cir., 1948), certiorari denied 336 U.S. 912, 69 S.Ct. 601, 93 L.Ed. 1076 (1949). . 53 F.2d 184 (4th Cir., 1931). . 148 F.2d 816 (5th Cir., 1945), certio-rari denied 326 U.8. 720, 66 S.Ct. 25, 90 L.Ed. 427 (1945). . 235 F.2d 116 (5th Cir., 1956), certio-rari denied 352 U.S. 879, 77 S.Ct. 102, 1 L.Ed.2d 80 (1956). . 183 F.2d 436 (4th Cir., 1950), certio-rari denied 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950). . 80 U.S.App.D.C. 81, 149 F.2d 381 (1945), certiorari denied 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429 (1945). . 93 U.S.App.D.C. 226, 209 F.2d 789 (1953). . 331 U.S. at page 153, 67 S.Ct. at page 1102, 91 L.Ed. 1399." } ]

[ { "docid": "12160699", "title": "", "text": "under state law before concluding that a deprivation of life, liberty, or property violates due process of law, is not a novelty in either property cases, see Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), or liberty cases, see Ingraham v. Wright, 430 U.S. 651, 676-82, 97 S.Ct. 1401, 1415-1418, 51 L.Ed.2d 711 (1977), under 42 U.S.C. § 1983. It is the approach taken by the Sixth Circuit in Huynh Thi Anh v. Levi, 586 F.2d 625, 632-34 (6th Cir. 1978), a case much like this one. A grandmother and uncle were seeking, though by a petition for habeas corpus rather than an action under 42 U.S.C. § 1983, to wrest custody of their grandchildren-nephews from the foster homes where the state’s welfare and judicial officers had put them. The court held not only that state remedies had not been exhausted as required in habeas corpus cases, but also that there was no denial of due process, because the state remedies that were available to the plaintiffs were adequate. (The court bypassed the question whether the plaintiffs had a liberty interest to begin with. See id. at 632.) The approach is appropriate in family-law cases because of the peculiarly local nature of that law. We are well aware that the Supreme Court has made inroads in recent years into this once secure preserve of states’ rights. No longer can it be said that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not the laws of the United States.” In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890). Yet recognizing that family law is peculiarly local, the federal courts continue to adhere tenaciously to the judge-made rule that excepts most domestic relations cases from the diversity jurisdic tion. See, e.g., Solomon v. Solomon, 516 F.2d 1018, 1024 (3d Cir. 1975). The relief sought in this case illustrates, if the point is not sufficiently obvious, why the federal courts are not the right tribunals to decide custody" } ]

[ { "docid": "18717979", "title": "", "text": ". There are several other possible problems with the Kompares’ claim for a right to prosecution only for probable cause. First, the constitutional right to be free from prosecution except for probable cause may not exist distinct from the right to be free from malicious prosecution. Plaintiffs have not cited even one case discussing prosecution without probable cause, and we could not find any cases discussing such a right, although one case did mention it. Charles v. Wade, 665 F.2d 661, 662 (5th Cir.1982), cert. denied, 460 U.S. 1036, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983). In fact, the one case cited by plaintiffs in support of their right to prosecution only for probable cause is a constitutional malicious prosecution case. McCrimmon v. Kane County, 606 F.Supp. 216 (N.D.Ill.1985). There are, however, several cases recognizing a constitutional right to be free from malicious prosecution, one element of which is that the prosecution lacked probable cause. See, e.g., Occhino v. United States, 686 F.2d 1302, 1311 (8th Cir.1982); Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980); Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir.1979), rev'd on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). Second, whether or not the right to be free from prosecution without probable cause exists, it does not appear to be clearly established. Thus, it appears that Richmond’s qualified immunity would protect her from this claim. Third, if the right springs from the Fourteenth Amendment right to procedural due process, then this claim may be barred under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), because an established state procedure arguably was not involved and the Illinois tort of malicious prosecution appears to provide an adequate state remedy. See McCrimmon v. Kane County, 606 F.Supp. at 222-23. Fourth, to the extent this cause of action is based on negligence (or perhaps even gross negligence or recklessness) the plaintiffs may not have stated a violation of their Fourteenth Amendment rights. Daniels v. Williams," }, { "docid": "18575344", "title": "", "text": "not directly addressed the issue of whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to procedural due process claims based on deprivations of liberty as well as to those based on deprivations of property. In Parratt, the Supreme Court held that “takings of property without any predeprivation process” are permissible under the due process clause of the Fourteenth Amendment when the loss is the “result of a random and unauthorized act by a state employee” rather than “a result of some established state procedure.” 451 U.S. at 541, 101 S.Ct. at 1916. The Court noted that “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. The Court found that the availability of a meaningful post-deprivation hearing satisfied the requirements of procedural due process because there were state remedies that could have fully compensated the plaintiff, even though those remedies may not have been as extensive as the remedies available under section 1983. Id. at 537-44, 101 S.Ct. at 1913-17. In the present case, the conduct complained of by Thomas is not conduct that is pursuant to established state procedures; it is conduct that is clearly “random and unauthorized.” Parratt, 451 U.S. at 541, 101 S.Ct. at 1916; see Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). As the Supreme Court made clear in Hudson v. Palmer, the “controlling inquiry” under Parratt “is solely whether the state is in a position to provide for predeprivation process.” 104 S.Ct. 3194, 3204 (1984). In my view, there is no logical reason to restrict the application of Parratt to property deprivations. Since a state is in no better position to anticipate random or unauthorized deprivations of liberty than it is of property, I believe that the rationale of Parratt extends to cases of liberty deprivations. The decisions of the majority of other circuits that have considered this question support this conclusion. See Toney-El v. Franzen, 777 F.2d 1224, 1227-28 (7th Cir.1985) (“In section 1983 actions challenging the" }, { "docid": "7587670", "title": "", "text": "facts. We therefore conclude that the allegations in plaintiffs complaint were not vague and conclusory and that they alleged a set of facts which, if proven, would have entitled the plaintiff to relief under the eighth amendment. Neither the district court nor this court construes the complaint to have alleged that the prison policy infringed on the prisoner’s liberty interest under the fourteenth amendment. II. Plaintiff’s fourteenth amendment claim apparently is based on a contention that the robbery of his cell resulted from the prison policy of allowing inmates to possess keys to cell doors, and that this policy therefore caused him to be deprived of property without due process. The district court concluded that plaintiff’s claim was not cognizable under 42 U.S.C. § 1983, because state law provides a post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981). The Supreme Court held in Parratt that a cause of action for money damages by an inmate against prison officials for deprivation of property under color of state law occurring as a result of random and unauthorized acts will not lie where the state law affords a post-deprivation remedy for such acts. Parratt, 451 U.S. at 543, 101 S.Ct. at 1916. In Bonner v. Coughlin, 517 F.2d 1311 (7th Cir.1975), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978), plaintiff alleged that his cell had been robbed after his cell door was accidentally left open by a guard. The court held that “the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.” Bonner, 517 F.2d at 1319, quoted in Parratt v. Taylor, 451 U.S. at 542, 101 S.Ct. at 1916. The language of plaintiff’s complaint suggests that keys were not furnished to inmates pursuant to established state policy but as a result of the misconduct of defendants Lear and Schaeffer. Plaintiff alleges that keys are not furnished to inmates at other" }, { "docid": "14379246", "title": "", "text": "(a) what precautions might have been reasonable against the risk of a disaster such as that which occurred, and (b) whether or not deliberate or reckless disregard of the need for such precautions can be established. See Mahoney v. Hankin, 844 F.2d 64, 68 (2d Cir.1988); Goddard v. Urrea, 847 F.2d 765, 769 (8th Cir.1988). I deny this branch of the County’s motion without prejudice for this reason and because, on the grounds discussed below, I conclude that further proceedings in state court should precede resolution in this court of the issue of whether the duty was violated. IV In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), involving a claim under 42 USC § 1983 that the Fourteenth Amendment was violated by negligent loss of a prisoner’s property, the Supreme Court held that (a) where no autho rized but unconstitutional state procedure was involved and (b) where pre-deprivation proceedings were impracticable, due process could be satisfied by state post-deprivation remedies. In Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), Parratt was held to be applicable to deprivations of liberty as well as property. But the Court held involuntary placement in a mental hospital vulnerable to suit under 42 USC § 1983 where predeprivation safeguards were practicable but not provided. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (substantial financial deprivation without prior notice impermissible). Zinermon underscored a major predicate of Parratt’s holding: that post-deprivation state remedies are adequate where “the very- nature of a negligent loss'' of the rights involved (property in- Parratt) “made it impossible for the State to predict such deprivations and provide predeprivation process.” Where that was the situation, “the State, by making available a tort remedy that could adequately redress the loss, had given ... the process ... due.” 494 U.S. at 129, 110 S.Ct. at 985. The Zinermon opinion rejected applicability of Parratt to the involuntary hospitalization involved in that case, not because only state-created rights were involved in Parratt, or because liberty rather than property" }, { "docid": "10726661", "title": "", "text": "Amendments, governmental liability, conduct of governmental actors, liability of individual state actors, and immunities. In 1981, there appeared to be a major change in the direction of the Supreme Court’s treatment of § 1983 cases, as evidenced by its decision in Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Whereas, Monroe v. Pape, supra, permitted the maintenance of a § 1983 cause of action for any constitutional violation by a state actor under color of law, Parratt v. Taylor, supra, limited this general right. Parratt v. Taylor, supra, involved the negligent taking of a prisoner’s personal property by a state employee. The Court held that in a property-procedural due process case involving the random negligent taking of property by a state actor that, although there was a constitutional deprivation of one’s property interests, it was not without due process because the state provided an established post deprivation remedy that adequately afforded the plaintiff his due process. Accordingly, no constitutional deprivation occurred and thus, a § 1983 action could not be maintained, even though the state remedy might not afford all of the relief that may be available under § 1983. It is important to distinguish the Supreme Court’s treatment of Monroe v. Pape, supra, which involved a violation of the Fourth Amendment resulting from an unreasonable search and seizure, from Parratt v. Taylor, supra, which involved a procedural due process case concerned with an individual’s deprivation of his personal property. The Fourteenth Amendment to the United States Constitution provides, in part, “... nor shall any State deprive any person of life, liberty or property, without due process of law, ____” (Emphasis added.) Because of the limiting language in the Fourteenth Amendment, that is, “without due process of law,” not all deprivations of life, liberty, or property are prohibited. Only those deprivations which are made “without due process” violate the Fourteenth Amendment. It was this limiting language which opened the door for the United States Supreme Court to make its determination that certain types of cases brought under § 1983 alleging property deprivations in violation of the" }, { "docid": "18817283", "title": "", "text": "S.Ct. at 1413. Analyzed in light of this principle, the alleged loss of the tip of plaintiff’s finger resulting from the defendant’s negligent conduct deprived plaintiff of “liberty.” So, in ruling on defendants’ motion to dismiss for failure to state a claim, the court must also determine whether plaintiff has been deprived of his liberty without due process of law in violation of the fourteenth amendment. In deciding whether plaintiff’s allegations are sufficient to state a claim for deprivation of liberty without procedural due process, the court is aided by the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) . The fourteenth amendment claim in Parratt was that prison officials negligently lost the plaintiff’s hobby kit, thereby depriving him of his property without due process of law. But the Court held that, unless the deprivation was pursuant to an established state practice or procedure, id. at 541, 101 S.Ct. at 1916, the property loss was not “without due process of law” if the state provided the plaintiff with a means by which he could seek redress for the deprivation. Id. at 543, 101 S.Ct. at 1916. In other words, the Supreme Court held that the “negligent loss of a prisoner’s property by a prison official was not a due process violation when the state provided an adequate postdeprivation remedy.” Palmer v. Hudson, 697 F.2d 1220 at 1222 (4th Cir.1983). The Court concluded in Parratt that the existence of a state statutory tort remedy allowing inmates to recover against state prison officials for negligent loss of property satisfied the requirements of due process. At least one court has held that the Parratt analysis applies “when only a negligent deprivation of property is involved.” Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1178 (M.D.Tenn.1982). Indeed, there is support for that position in two of the concurring opinions in Parratt. Justice Blackmun, with whom Justice White concurred, did not read the Court’s opinion “as applicable to a case concerning deprivation of life or of liberty,” 451 U.S. at 545, 101 S.Ct. at 1918, or" }, { "docid": "5074760", "title": "", "text": "dismissal is that plaintiff has alleged no more than a common law tort for which state law provides constitutionally adequate post-deprivation remedies, and that no due process violation can therefore be shown. Defendants rely on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which a state prisoner alleged that the negligence of state officials in losing a hobby kit he had ordered through the mails had deprived him of property without due process of law. The Supreme Court reversed a grant of summary judgment in the prisoner’s favor, and held that the due process clause of the fourteenth amendment is not violated when a state official negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy. The Court in Parratt reasoned that where a loss of property is occasioned by the random and unauthorized act of a state employee, rather than through an established state procedure, the state cannot predict in advance when the loss will occur. 451 U.S. at 541, 101 S.Ct. at 1916. Since a prior hearing is either impossible or impracticable under such circumstances, the Court concluded that postdeprivation remedies provide all the process that is due. The decision in Parratt generated conflicting decisions and scholarly controversy over its applicability to intentional acts and to deprivations of liberty. Although the Seventh Circuit has applied Parratt to some state-inflicted liberty deprivations, State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.), cert. denied, — U.S. ---, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir.1983); Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982), it has also suggested in dicta that postdeprivation process may not be constitutionally adequate to remedy cases involving intentional misconduct of state officials. Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984); State Bank of St. Charles, 712 F.2d at 1147-48. Plaintiff argues that Parratt has" }, { "docid": "13837397", "title": "", "text": "are necessary components of claims of Fifth Amendment deprivations. In Bonner v. Coughlin, 545 F.2d 565, 567 (7th Cir. 1976) (en banc), cert. denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978), the court reaffirmed the culpability component of a civil rights claim, stating that “[t]he guard’s culpability here was not of sufficient magnitude to constitute a deprivation of rights under Section 1983.” In the context of the Fourth Amendment right to be free from unreasonable search or seizure, if the officer acts without probable cause or uses excessive force, unreasonableness is shown. Although no other state of mind requirement exists, the plaintiff must still prove culpability in that he must prove not merely that he was searched or seized, but that the search or seizure was unlawful, i.e., unrea sonable under the Fourth Amendment. See Beard v. Mitchell, 604 F.2d at 495 n.12, citing Boscarino v. Nelson, 518 F.2d 879, 881-882 (7th Cir. 1975). . The Supreme Court’s recent decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), may seem to suggest that the Court is moving toward elimination of the state of mind requirement for constitutional violations made the subject of § 1983 actions. The Court held that a deprivation of property, attributable to the negligence of supervisory state officials, was a constitutional deprivation within the meaning of the due process clause of the Fourteenth Amendment. The Court further held that there had been no deprivation “without due process of law” since the availability of a post-deprivation tort award under state law provided the plaintiff with all the process he was due. After Parratt, it is arguable that municipal negligence will be actionable under § 1983 if the state has failed to provide an adequate and readily available tort remedy. However, it is not clear whether the Parratt holding will be extended beyond the realm of property deprivations, and the concurring opinions suggest that it will be so limited. See, e.g., 101 S.Ct. at 1918 (Blackmun, J., concurring). Moreover, the adoption of such a doctrine would vitiate the Supreme Court’s" }, { "docid": "23231787", "title": "", "text": "and supervise defendant Holmgreen. On this appeal, Guenther principally challenges the district court’s conclusion that he was not denied liberty without due pro cess and that he was collaterally estopped from relitigating the Fourth Amendment probable cause issue, which was determined against him in the state court’s preliminary hearing. II. First, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), does not entirely dispose of Guenther’s § 1983 claim. In Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17, the Supreme Court held that the negligent loss of property by state officials did not present a cognizable § 1983 due process claim when state tort remedies provided adequate relief for the deprivation. The Seventh Circuit has applied Parratt to deprivations of life, liberty, as well as property. Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir.1983); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983). The rationale behind Parratt is that a victim of a property or liberty deprivation who has recourse to an adequate state remedy has not been denied “due process of law”. Id.; see also M. Wells and J. Eaton, “Substantive Due Process and The Scope of Constitutional Torts” 18 Georgia L.Rev. 201, 211-12 (1984). Hence, as the court stated in Wolf-Lillie, 699 F.2d at 871, “[T]he Parratt decision ... requires federal courts to consider the adequacy and availability of remedies under state law before concluding that a deprivation of life, liberty, or property violates due process of law”, citing Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.1982). As the district court properly recognized, there are Wisconsin tort remedies for matters which form the basis of Guenther’s claim that he was deprived of liberty without due process of law. Specifically, claims for false arrest, false imprisonment, and malicious prosecution are all actionable in Wisconsin. Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619, 621-22 (1968); Elmer v. Chicago and Northwestern Railroad Co., 257 Wis. 228, 43 N.W.2d 244 (1950). Presumably, the recovery of consequential damages for these torts would permit compensation for injuries to Guenther’s reputation." }, { "docid": "23231786", "title": "", "text": "cross-examined Holmgreen and other state witnesses to the incident, and called a witness to contradict the state’s version of the incident. Following this hearing, the trial court determined that there was probable cause to arrest and denied Guenther’s motion tp dismiss. After his criminal trial, Guenther was found not guilty of the charge of disorderly conduct; the jury was unable to reach a verdict on the resisting arrest charge. Presumably, the resisting arrest charge was subsequently disposed of in favor of Guenther. Thereafter, Guenther brought this § 1983 “constitutional tort” action against Holmgreen and the City of Black River Falls. In the district court and on this appeal, Guenther has claimed that the arrest, allegedly made without probable cause and based upon Holmgreen’s factual misrepresentations, violated his Fourteenth Amendment right to be secure against unreasonable searches and seizures. Guenther has also claimed he was deprived of liberty without due process of law under the Fourteenth Amendment. Guenther has named the City of Black River Falls as a defendant for its alleged failure to properly train and supervise defendant Holmgreen. On this appeal, Guenther principally challenges the district court’s conclusion that he was not denied liberty without due pro cess and that he was collaterally estopped from relitigating the Fourth Amendment probable cause issue, which was determined against him in the state court’s preliminary hearing. II. First, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), does not entirely dispose of Guenther’s § 1983 claim. In Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17, the Supreme Court held that the negligent loss of property by state officials did not present a cognizable § 1983 due process claim when state tort remedies provided adequate relief for the deprivation. The Seventh Circuit has applied Parratt to deprivations of life, liberty, as well as property. Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir.1983); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983). The rationale behind Parratt is that a victim of a property or liberty deprivation who has recourse to an adequate state remedy" }, { "docid": "22595523", "title": "", "text": "only issue as far as you are concerned is whether or not summary judgment was correct as to Wheeler and the Town. . This circuit has recognized that the use of excessive or unreasonable force or violence by law enforcement personnel resulting in personal injury deprives a person of liberty without due process of law in violation of the fourteenth amendment. Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (1st Cir.1980). See also Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981); Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). . In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that the negligent taking of a prisoner's property as a result of a random and unauthorized act by a state employee acting under color of law amounted to a deprivation of property within the context of the fourteenth amendment. Id. at 536-37, 101 S.Ct. at 1913-14. The Court went on to hold, however, that such a deprivation is not without due process of law (and hence not actionable under section 1983) when the state provides a post-deprivation tort remedy under which the respondent can obtain compensation for his loss. Id. at 541, 101 S.Ct. at 1916. This holding has been subsequently extended to intentional deprivation of property. See Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). It is yet unclear whether this approach will be applied to deprivations of life or liberty under the fourteenth amendment. See Note, Due Process Application of the Parratt Doctrine to Random and Unauthorized Deprivations of Life and Liberty, 52 Fordham L.Rev. 887 (1984) (arguing that the doctrine should be so applied); Note, Parratt v. Taylor: Don’t Make a Federal Case Out of It, 63 B.U.L.Rev. 1187 (1983) (same); compare with Note, Defining the Parameters of Section 1983: Parratt v. Taylor, 23 B.C.L.Rev. 1218 (1982) (taking the opposite view). See also R.A. Smolla, The Displacement of Federal Due Process Claims by State Tort Remedies: Parratt v." }, { "docid": "7214951", "title": "", "text": "case, the evidence does not support the proposition that the defendants searched the plaintiff’s home incident to her arrest or that they searched only areas within her immediate reach. In fact, it appears that the arrest did not occur until after the defendants had conducted the search and that its scope extended to the plaintiff’s attic, far beyond the reach of the plaintiff. The court will not absolve the defendants’ conduct because the plaintiff followed the defendants to the places where they searched her things. To do so would mean that the defendants could create a situation where they could search areas within the plaintiff’s immediate control by dragging the plaintiff to those areas — thereby making a mockery of the protections provided by the fourth amendment. See, e.g., United States v. Wright, 577 F.2d 378, 381 (6th Cir.1978). D. Deprivation of Liberty Without Due Process The court grants the defendants’ motion for summary judgment on the procedural due process claim because adequate state remedies are available to the plaintiff under Illinois law. Under Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), a person does not state a due process claim for deprivation of a property interest if an adequate state-law remedy is available. The Seventh Circuit appears to have extended the logic of Parratt to cases involving deprivation of liberty interests. See, e.g., Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 199 (7th Cir.1985); Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983); Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.1982), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). Even if the Seventh Circuit has not so held, for the reasons set forth by the Eleventh Circuit in Burch v. Apalachee Community Mental Health Services, 804 F.2d 1549, 1553-57 (11th Cir.1986), the court finds" }, { "docid": "18371413", "title": "", "text": "MEMORANDUM ORDER KELLAM, Senior District Judge. David Graham, Jr., a Virginia prison inmate, asserted that Mitchell and other correctional personnel negligently caused the loss of a watch Graham had ordered by mail, and thus deprived him of property without due process of law in contravention of the Fourteenth Amendment. Graham appealed this Court’s dismissal of his action filed pursuant to 42 U.S.C. § 1983. The Fourth Circuit remanded the case in light of the Supreme Court decision of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which held that if a state provides a remedy for property loss which satisfies the requirements of procedural due process, an inmate has not stated a claim of constitutional magnitude cognizable under 42 U.S.C. § 1983. The Fourth Circuit directed this Court to consider “whether the state provides a remedy for the property loss Graham asserts and, if so, whether the remedy provided satisfies procedural due process requirements.” Graham v. Mitchell, 672 F.2d 909 (4th Cir. 1981). As the Supreme Court correctly pointed out in Parratt, supra, nothing in the Fourteenth Amendment protects against all deprivations of property by a state. Rather, “the Fourteenth Amendment protects-only against deprivations ‘without due process of law.’ ” Id. at 1913. In deciding whether Virginia tort remedies provide a means of redress for property deprivation that satisfies procedural due process requirements, it is important to note that the Supreme Court has recognized that such requirements can be satisfied by postdeprivation remedies made available by a state. Id. at 1914. See, e.g., North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908). In fact, the Supreme Court in Parratt, supra, at 1916, admitted that it is practically impossible for a state to provide a meaningful hearing before the deprivation takes place since the loss of property, while attributable to a state as action “under color of law,” is usually always beyond the control of a state. That, of course, does not mean that a state can take property without providing a meaningful postdeprivation hearing. However, for such" }, { "docid": "23095811", "title": "", "text": "has held that where pre-deprivation remedies cannot anticipate and prevent a state actor’s wrongful act, post-deprivation state tort remedies are adequate to satisfy due process requirements. Parratt v. Taylor, 451 U.S. 527, 535-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (holding state could not anticipate employee’s negligence); see also Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (extending Parratt’s logic to intentional torts). In his Albright concurrence, Justice Kennedy argued that in § 1983 malicious prosecution cases, a “state actor’s random and unauthorized deprivation of [Fourteenth Amendment due process interests] cannot be challenged under 42 U.S.C. § 1983 so long as the State provides an adequate post deprivation remedy.” 510 U.S. at 284, 114 S.Ct. 807 (Kennedy, J., concurring). As he explained, “In the ordinary case where an injury has been caused ... by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under § 1983, at least in a suit based on ‘the Due Process Clause of the Fourteenth Amendment.’ ” Id. at 285, 114 S.Ct. 807 (quoting Parratt, 451 U.S. at 536, 101 S.Ct. 1908); see also Nieves, 241 F.3d at 53 (rejecting procedural due process claim under § 1983 for malicious prosecution because state provides adequate tort remedy); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.2001) (holding state tort remedy “knocks out any constitutional tort of malicious prosecution” based on due process). We agree with this analysis. Becker does not suggest what pre-depri-vation process could have anticipated the malfeasance of the MFCU investigators and protected her from an abusive investigation, and we decline to supply procedural requirements in addition to already-established criminal procedure under the Constitution and state law. Utah tort law provides an adequate post deprivation remedy to protect Becker’s non-Fourth Amendment liberty interests. See Gilbert v. Ince, 981 P.2d 841 (Utah 1999) (recognizing state causes of action for malicious prosecution and abuse of process); see generally 2 Dan B. Dobbs, The Law of Torts § 438 (2001) (describing damages for malicious prosecution or abuse of process). Accordingly, in this" }, { "docid": "23253232", "title": "", "text": "v. Sullivan, 523 F.2d 485, 487-488 (7th Cir.1975). Nevertheless, in this case we find that even under the most liberal reading of the complaint, plaintiffs have failed to establish that defendants’ conduct was so egregious as to rise to the level of a constitutional violation cognizable under Section 1983. It is difficult to precisely define the parameters of malicious prosecution under Section 1983 because courts have included many different kinds of official conduct under the rubric of “malicious prosecution.” All federal claims for malicious prosecution are borrowed from the common law tort actionable only under state law. Common law malicious prosecution imposes liability on a private person who institutes criminal proceedings against an innocent person without probable cause for an improper purpose. The federal claim under Section 1983 for malicious prosecution differs from the state civil suit in that it requires that state officials acting “under color of law” institute the criminal proceedings against the plaintiff and thereby deprive him of rights secured under the Constitution. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1st Cir.1983). The majority of courts require the federal plaintiff to prove the elements of malicious prosecution under state law, see, e.g., Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2nd Cir. 1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986); Terket v. Lund, 623 F.2d 29 (7th Cir.1980), but also hold that only when the misuse of the legal proceedings is so egregious as to subject the individual to a deprivation of a constitutional dimension does Section 1983 provide a remedy. Coogan v. City of Wixom, 820 F.2d 170, 174 (6th Cir.1987). See also Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621 (9th Cir.1988) (citing Usher, 828 F.2d at 562 (claim of malicious prosecution is cognizable under Section 1983 if prosecution is conducted with intent to deprive person of equal protection of the laws)); Hand v. Gary, 838 F.2d 1420 (5th Cir.1988) (state actors may be" }, { "docid": "19726222", "title": "", "text": "area. While he found that Beebe did not intend to fire the gun the magistrate also found that Beebe acted contrary to his training as a Michigan State Police Department Officer in cocking his revolver during the arrest and handcuffing of Wilson and that this conduct was negligent. Id. at 581. Wilson sued Beebe under 42 U.S.C. § 1983 for damages and under a pendant state claim of negligence. The magistrate before whom the case was tried determined that Wilson’s complaint failed to state a claim upon which relief could be granted under § 1983 based on the decision of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Recovery was allowed, however, on the pendant negligence claim. In its eventual affirmance of this result, the Sixth Circuit Court of Appeals delineated the differences between conduct which reaches constitutional dimensions from conduct which merely constitutes a tort. See Wilson v. Beebe, 770 F.2d at 581-587. Both procedural and substantive due process analysis was covered because Wilson, as the- case with plaintiff in this cause, did not specify the exact nature of the alleged violation. I. PROCEDURAL DUE PROCESS In analyzing whether a procedural due process claim had been shown, the Sixth Circuit discussed at length the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which limited the reach of § 1983 in the context of procedural due process. The Parratt court instructed that when a due process claim involves a deprivation- of-property, the first inquiry is whether the state provides an adequate tort remedy. Id. at 537, 101 S.Ct. at 1914. If the state tort remedy is deemed adequate, the deprivation is not “without due process of law.” Id. The Parratt court dealt only with the deprivation of property by the negligent random and unauthorized acts of state officials. Wilson v. Beebe, 770 F.2d at 578. A more recent case, Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982), limited Parratt to this type of random conduct by state" }, { "docid": "19726223", "title": "", "text": "in this cause, did not specify the exact nature of the alleged violation. I. PROCEDURAL DUE PROCESS In analyzing whether a procedural due process claim had been shown, the Sixth Circuit discussed at length the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which limited the reach of § 1983 in the context of procedural due process. The Parratt court instructed that when a due process claim involves a deprivation- of-property, the first inquiry is whether the state provides an adequate tort remedy. Id. at 537, 101 S.Ct. at 1914. If the state tort remedy is deemed adequate, the deprivation is not “without due process of law.” Id. The Parratt court dealt only with the deprivation of property by the negligent random and unauthorized acts of state officials. Wilson v. Beebe, 770 F.2d at 578. A more recent case, Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982), limited Parratt to this type of random conduct by state officials and found that it does not apply to deprivations of property under established state procedures without adequate predeprivation procedural safeguards. The Parratt decision was expanded to include intentional deprivations of property in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), on the theory that the state cannot anticipate either negligent or intentional conduct which is random and unauthorized for the purpose of providing predeprivation process. In Wilson v. Beebe, the Sixth Circuit Court of Appeals addressed the issue of whether the Parratt rationale should be extended to deprivations of liberty interests protected by the fourteenth amendment. The court found that Parratt applies equally to deprivations of liberty interests if two inquiries are addressed: first, was the conduct random and unauthorized rather than pursuant to established state procedures; and second, if the conduct was random and incapable of anticipation by the state, is there an adequate postdeprivation p oceeding which satisfies the requirements of procedural due process. Wilson v. Beebe, 770 F.2d at 584. The Wilson court found that Beebe’s" }, { "docid": "2239137", "title": "", "text": "The unfairness of such a rule is patent. Reference to the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) buttresses my decision not to rely upon the doctrine outlined in North Georgia. In Parratt, the court held that a state actor’s mere negligent deprivation of property is not unconstitutional when the victim can be made whole in a post-deprivation state court proceeding. Here, as defendants point out, plaintiff, assuming the truth of his factual allegations, could have sued Baxter in state court for replevin or conversion. To the extent, then, that plaintiff is claiming that the substantive quality of Witney and Heuer’s decision is irrelevant, and that the Constitution is offended by the mere fact that they decided against him per se, plaintiff’s theory would not only be unfair, as argued before, but potentially in conflict with Parratt as well. For even if McCowen could prove that he had indeed possessed rights in the Mercedes, if the facts further established that Heuer and Witney had been guilty of only negligence in failing to recognize these rights, Parratt, on these facts, would mandate a finding of no constitutional deprivation. The availability of Illinois state law relief would have afforded plaintiff all the process he had been due. On the other hand, if the facts establish both the actual existence of McCowen’s property rights and more than negligence on the part of the defendants in failing to respect these rights, the constitutional analysis might differ. Prior to Parratt, this was clearly the law. The Seventh Circuit had often recognized that § 1983 encompasses property deprivation claims based on allegations of either intentional or reckless state behavior. See, e.g., Beard v. Mitchell, 604 F.2d 485, 494 (7th Cir. 1979). Whether this doctrine survived Parratt, however, requires some discussion. Literally, Parratt deals only with allegations of negligence. Nevertheless, its seeming rationale is that post-hoc relief satisfies due process whenever a plaintiff challenges state behavior which consists of a “random and unauthorized act by a state employee” rather than a regularized procedure. Parratt v. Taylor, 451" }, { "docid": "96655", "title": "", "text": "plaintiff of his property without due process of law. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court addressed precisely the same issue as that raised here by plaintiff’s allegations. Parratt concerned a prison inmate’s claim under 42 U.S.C. § 1983 that prison officials negligently lost his property in violation of his fourteenth amendment rights. The inmate was incarcerated in Nebraska and Nebraska law provided the inmate with a statutory tort remedy against state prison officials. Following the reasoning of the Seventh Circuit in Bonner v. Couglin, 517 F.2d 1311 (7th Cir. 1975), mod. en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978), the Supreme Court noted that although the inmate had been deprived of property under color of state law, the deprivation did not result from the use of an established state procedure. Rather, “the deprivation occurred as a result of the unauthorized failure of agents of the state to follow established state procedure.” 101 S.Ct. at 1917. Therefore whether the plaintiff could maintain an action under section 1983 turned upon whether Nebraska law provided plaintiff with a remedy to redress the misconduct of the state officials that satisfied the due process clause of the fourteenth amendment. In this regard the Supreme Court found that the Nebraska statutory tort remedy allowing inmates to recover against state prison officers fulfilled the requirements of due process. When a plaintiff seeks compensation for the “random and unauthorized act of a state employee,” due process standards do not require that there be a hearing prior to the taking by state officials. Instead the states need only provide “some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.” Id. Just as in Parratt, the complaint in this action simply alleges that public officials have committed unauthorized or negligent acts. No state procedure itself is being challenged. Thus the question presently before the Court is whether Virginia law provides plaintiff with a remedy against defendants Karr and Cassell that satisfies the requirements of" }, { "docid": "758454", "title": "", "text": "The complaint alleges that the defendants, responding to a call of a possible home burglary, found Gregory Shearer in bed, and without provocation shot him seven times, killing him instantly. Simply put, this court thinks that those facts state a claim for violation of constitutional rights. The motion is denied. DISCUSSION Defendants, in their brief in support of their motion, appear to argue that plaintiffs have no remedy under § 1983 since the Illinois Wrongful Death Act provides them with an adequate remedy. Alternatively, however, they may be arguing that while plaintiffs have § 1983 actions, 42 U.S.C. § 1988 and the Seventh Circuit decision in Bell v. City of Milwaukee, -746 F.2d 1205 (7th Cir.1984), effectively limit those actions to the contours defined by the Illinois Wrongful Death Act. Neither contention is correct. I. The first argument would presumably be based on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), although that case is nowhere cited in defendants’ brief. Defendants, however, argue that Illinois law provides adequate redress for the wrongs committed and therefore the § 1983 claim should be dismissed. That would be the result if Parratt applied here. In Parratt, a prisoner sued under § 1983 for negligent deprivation of property without due process of law. Prison officials had lost a hobby kit of his worth $23.50. The court held that § 1983 did not apply because the official’s conduct did not violate due process. State court law provided an adequate post-deprivation remedy in a situation where a pre-deprivation hearing was not practical. 451 U.S. at 543-544, 101 S.Ct. at 1916-1917. In some circumstances, then, the existence of an adequate remedy under state law precludes a § 1983 claim. The intentional or reckless deprivation of life by state officials, however, is not one of those situations. As the Fifth Circuit succinctly put it, in Augustine v. Doe, 740 F.2d 322, 329 (5th Cir.1984): Parratt v. Taylor is not a magic wand that can make any section 1983 action resembling a tort suit disappear into thin air. Parratt applies only when the plaintiff" } ]

[ { "docid": "23246265", "title": "", "text": "... a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law. ... Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. Id. at 424-26, 96 S.Ct. at 992-93; see also Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978) (“[ajbsolute immunity is ... necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation”). Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make , a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker’s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit. We therefore hold that social workers are entitled to absolute immunity in performing quasiprosecutorial functions connected with the initiation and pursuit of child dependency proceedings. Such a holding is consistent with the holdings of other courts.. See, e.g., Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984); Pepper v. Alexander, 599 F.Supp. 523, 526-27 (D.N.M.1984); Whelehan v. County of Monroe, 558 F.Supp. 1093, 1098-99 (W.D.N.Y.1983). We do not agree, however, that all of Haaland’s alleged conduct falls within the scope of quasi-proseeutorial activities. On October 23, Haaland allegedly ordered Meyers to stay away from his home until after the hearing before the juvenile court. At that time, Haaland had not yet initiated dependency proceedings. Haaland is not entitled to absolute immunity for this act. In Ashelman v. Pope," } ]

[ { "docid": "13448040", "title": "", "text": "at the State Receiving Home. Alternatively, defendants claim qualified immunity from those claims as a matter of law. While 42 U.S.C. § 1983 imposes liability on “every person” who, under col- or of state law, deprives another of a constitutional right, state officials performing discretionary functions have been accorded immunity from § 1983 actions for damages. Harlow v. Fitzgerald, 457 U.S. 800, 806-07, 102 S.Ct. 2727, 2731-32, 73 L.Ed.2d 396 (1982). This immunity protects public officials from undue interference with their duties and from the chilling effects of potential liability. Id. at 806, 102 S.Ct. at 2731. Such immunity may be either absolute, precluding any action for damages, or qualified, shielding only performance of official duties which does not violate clearly established constitutional rights of which a reasonable person would have known. Qualified immunity is the norm for executive officials, such as defendants. Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Absolute immunity, however, has been extended to executive officials performing functions closely associated with the judicial process, i.e., prosecutors and officials performing functions intimately associated with judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983); Imbler v. Pachtman, 424 U.S. 409, 424-26, 96 S.Ct. 984, 992-93, 47 L.Ed.2d 128 (1976). The ramifications of absolute immunity justify it only when required by considerations of public policy. The official seeking absolute immunity bears the burden of showing that public policy requires such immunity. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). Absolute immunity for child welfare workers has been based on two theories. First, the initiation of child abuse or custody proceedings has been found to be analogous to that of a prosecutor who is cloaked with absolute immunity. Imbler, 424 U.S. at 420, 96 S.Ct. at 990, et seq.; Dacey v. Dorsey, 568 F.2d 275, 278 (1978); see, e.g., Meyers v. Contra Costa County Dept. of Social Serv., 812 F.2d 1154, 1156-57 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987) (responsibility" }, { "docid": "5373034", "title": "", "text": "at 990. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) the Court extended the rule of Imbler to provide absolute immunity for \"agency officials performing certain functions analogous to those of a prosecutor.” Butz, 438 U.S. at 515, 98 S.Ct. at 2915. In reliance on Imbler and Butz, a number of courts have extended absolute immunity to social workers, finding that \"the role of a social worker in the care of minors is sufficiently analogous to the role of a prosecutor to warrant absolute immunity.” Mazor, 637 F.Supp. at 334. See, e.g., Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984); Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987); Hennessey v. State of Washington, Department of Social and Health Services, 627 F.Supp. 137 (E.D.Wash.1985); Pepper v. Alexander, 599 F.Supp. 523 (D.N.Mex.1984); Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983); Malachowski v. City of Keene, 787 F.2d 704 (1st Cir.1986) (juvenile officer who initiates juvenile delinquency proceeding). These courts have reasoned that, like prosecutors, social workers are required to collect and analyze investigative information, and based upon that information, determine whether to initiate court proceedings on behalf of a child suspected to be a victim of neglect and/or abuse. In addition, like prosecutors, social workers must \"make decisions about the temporary or protective custody of minors ... often ... on an emergency basis.” Mazor, 637 F.Supp. 334. As with prosecutors, social workers are a ready target for disgruntled private parties. \"The social workers’ independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit.” Meyers v. Contra Costa County Department of Social Services, 812 F.2d at 1157. Because plaintiffs have suffered no constitutional deprivation at the hands of social workers in the instant cases, and because the social workers are entitled to qualified immunity in any event, it is unnecessary to reach the absolute immunity issue and the Court neither approves nor disapproves those cases holding social workers absolutely immune. ." }, { "docid": "8352332", "title": "", "text": "official functions that are analogous to functions performed by those who were immune at common law.” Id. at 494 (citing Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)). Under this “ ‘functional’ approach ... we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). For example, “[i]n Bums, the [Supreme] Court held that a prosecutor was absolutely immune from liability for his presentation of evidence in a probable cause hearing but was not absolutely immune for the provision of legal advice to police officers investigating a case.” Ernst, 108 F.3d at 495; see also Van de Kamp v. Goldstein, 129 S.Ct. 855, 859-61, 172 L.Ed.2d 706 (Jan. 26, 2009) (discussing the development of this functional approach). In Ernst, we extended this rationale to social workers, holding that the defendants in that case were “entitled to absolute immunity for their actions in petitioning and in formulating and making recommendations to the state court because those actions are analogous to functions performed by state prosecutors, who were immune from suit at common law.” 108 F.3d at 493; see also Meyers v. Contra Costa County Dept. of Soc. Sens., 812 F.2d 1154, 1157 (9th Cir.1987). At the same time, “[l]ike our sister courts,” we stated our “unwilling[ness] to accord absolute immunity to ‘investigative or administrative’ actions taken by child welfare workers outside the context of a judicial proceeding.” Ernst, 108 F.3d at 497 n. 7. Applying Ernst, the District Court found defendants “have absolute immunity in this case with respect to whether to bring a child dependency hearing. However, caseworkers do not qualify for absolute immunity when investigating or administering cases. Therefore, we must consider if the CYS caseworkers are protected under qualified immunity.” Thus, the court appears to have determined that some of defendants’ challenged actions in this case" }, { "docid": "635751", "title": "", "text": "accorded absolute immunity. In Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), for example, the Court extended prosecutorial immunity to executive branch officials charged with initiating and conducting administrative proceedings against individuals or corporations. Because these functions were sufficiently similar to the functions of prosecutors, the officials exercising them deserved absolute liability. Id. Appellants argue first that, like such administrative officials, TDHS child protective service workers are similar enough in function to prosecutors that they should be given absolute immunity- At least three other circuits have applied an Economou-Yike analysis in according absolute immunity to state child care social workers. Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987) held that a California social worker was absolutely immune from section 1983 liability for his actions in initiating dependency proceedings against a parent suspected of abusing his child. The court reasoned: Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker’s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit. Id. at 1157. Also, Malachowski v. City of Keene, 787 F.2d 704 (1st Cir.1986) accorded absolute immunity to a city juvenile officer accused of filing an allegedly false delinquency petition. The court held that the “filing of the petition ... was not an ‘inves tigative’ activity, but rather an activity ‘intimately associated with the judicial phase of the criminal process ... to which the reasons for absolute immunity apply with full force.’ ” Id. at 712 (citing Imbler, 424 U.S. at 430, 96 S.Ct. at 995). Finally, Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984) accorded" }, { "docid": "180919", "title": "", "text": "Supreme Court has not addressed the question of whether social workers can gain absolute immunity from suit for actions functionally analogous to a prosecutor's duties. But at least one Justice has noted potential problems with making absolute immunity available to social workers. See Hoffman v. Harris, 511 U.S. 1060, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994) (Thomas, J., dissenting from denial of petition for writ of certiorari) (“The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983.”); see also Margaret Z. Johns, A Black Robe Is Not A Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil-Rights Cases, 59 SMU L.Rev. 265, 285-90 (2006). . Other circuits agree that absolute immunity does not protect social workers acting in an investigative capacity, but that it does protect social workers acting in a prosecutorial capacity—such as when initialing child custody proceedings in court. See, e.g., Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.2000) (\"[Sjocial workers are absolutely immune only when they are acting in their capacity as legal advocates—initiating court actions or testifying under oath—not when they are performing administrative, investigative, or other functions.”); Meyers v. Contra Costa Cnty. Dep't of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.1987) (\"[Sjocial workers are entitled to absolute immunity in performing quasi-prose-cutorial functions connected with the initiation and pursuit of child dependency proceedings.”). . The Thomases also point to \"procedural due process” cases to support their claim. They did not assert this theory in the district court, and we decline to address it. See Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir.2012). . Qualified immunity protects officers from the burdens of pre-trial discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir.2004). But if the district court determines that it cannot rule on" }, { "docid": "20154147", "title": "", "text": "in as a prosecutor upon her assuming the six month, full-time pro bono rotation.” Id. at 3; see also id. at 18-23. The Supreme Court has held that prosecutors enjoy absolute immunity from civil suits based on their conduct in initiating and pursuing a criminal prosecution. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that prosecutors are absolutely immune for activities “intimately associated with the judicial process” such as initiating and pursuing a criminal prosecution). This absolute immunity extends to agency officials performing functions analogous to those of a prosecutor. Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (observing that “agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts”); see also Briscoe v. LaHue, 460 U.S. 325, 335-36, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (holding that all persons who are integral parts of the judicial process, such as witnesses, judges and prosecutors, are entitled to absolute immunity). Indeed, this Circuit has held that absolute immunity protects government attorneys for their conduct in initiating and prosecuting civil child neglect cases. Gray v. Poole, 243 F.3d 572, 577 (D.C.Cir.2001) (noting that in so holding, this Circuit joined with every Circuit to have addressed the issue); accord Snell v. Tunnell, 920 F.2d 673, 692-94 (10th Cir.1990) (holding that social services attorneys were entitled to absolute immunity for actions related to the prosecution of child neglect and delinquency proceedings); Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 397 n. 11 (4th Cir.1990) (same); see also Meyers v. Contra Costa County Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.1987) (holding that “social workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings”). This Circuit’s decision in Gray arose out of child neglect proceedings initiated by the District against the plaintiff, who had served as the custodian of his minor brother. Gray, 243 F.3d at 574. The plaintiff commenced an action under 42 U.S.C." }, { "docid": "22690355", "title": "", "text": "U.S. at 123, 118 S.Ct. 502; Buckley, 509 U.S. at 275, 113 S.Ct. 2606; Antoine, 508 U.S. at 433-38, 113 S.Ct. 2167; Burns, 500 U.S. at 484-85, 111 S.Ct. 1934; Malley, 475 U.S. at 340-41, 106 S.Ct. 1092; Mitchell, 472 U.S. at 521, 105 S.Ct. 2806; Imbler, 424 U.S. at 421, 96 S.Ct. 984; Pierson, 386 U.S. at 553-54, 87 S.Ct. 1213; see also Hoffman v. Harris, 511 U.S. 1060, 114 S.Ct. 1631, 1632, 128 L.Ed.2d 354 (1994) (Thomas and Scalia, J.J., dissenting from denial of certiorari on issue of-immunity for social workers). The relation of the action to a judicial proceeding, the test we formulated in Babcock, is no longer a relevant standard. This is apparent when we look at the underlying facts in those intervening Supreme Court cases. Antoine rejected absolute immunity for court reporters. Court reporters, despite being “indispensable to the appellate process,” do not exercise the sort of judgment for which there is quasi-judicial immunity. Antoine, 508 U.S. at 437, 113 S.Ct. 2167 (internal quotation marks omitted). The court reporter has no power of decision in the judicial sense. Id. at 437 n. 11, 113 S.Ct. 2167. Kalina rejected absolute immunity for a prosecutor attesting to facts in an affidavit supporting an application for an arrest warrant. The function was held to be similar to that of a complaining, out-of-court witness. The Court concluded that acting as such a witness is not a function that requires the exercise of an advocate’s judgment. Kalina, 522 U.S. at 129-31, 118 S.Ct. 502. Our decision in Meyers is consistent with the controlling Supreme Court decisions. Meyers recognized absolute immunity for social workers only for the discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents. Meyers, 812 F.2d at 1157. At least two of our sister circuits have also recognized that the scope of absolute immunity for social workers is extremely narrow. See, e.g., Snell v. Tunnell, 920 F.2d 673, 686-91 (10th Cir.1990) (denying absolute immunity to social workers for the function of seeking a protective custody order that did not initiate court proceedings); Vosburg" }, { "docid": "6505707", "title": "", "text": "quotation mark omitted). However, there are certain instances where executive employees, such as prosecutors, are entitled to absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The real distinction between whether an executive employee is entitled to absolute or qualified immunity turns on the kind of function the employee is fulfilling in performing the acts complained of. This is what the Supreme Court has called a “functional” analysis. Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Prosecutors are entitled to absolute immunity, for example, because their prosecutorial activities are “intimately associated with the judicial phase of the criminal process, and thus [are] functions to which the reasons for absolute immunity apply with full force.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. Mutatis mutandis, absolute immunity also extends to non-prosecutor officials when they are performing “functions analogous to those of a prosecutor.” Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). While any analogy between two kinds of executive employees is never perfect, such reasoning by analogy is at the heart of judicial thinking: things that are essentially alike should be treated essentially the same. Thus, the Butz Court held that an agency official who decides to institute an administrative proceeding is entitled in such circumstances to absolute immunity, since that decision is “very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution.” Id. at 515, 98 S.Ct. 2894. This Court has previously extended absolute immunity to state and federal officials initiating noncriminal proceedings such as administrative proceedings and civil litigation. See Barrett v. United States, 798 F.2d 565, 572 (2d Cir.1986) (citing Butz, 438 U.S. at 512-17, 98 S.Ct. 2894). Of particular relevance here, we have held that an attorney for a county Department of Social Services who “initiates and prosecutes child protective orders and represents the interests of the Department and the County in Family Court” is entitled to absolute immunity. Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir.1984). The Wishengrad Court concluded that" }, { "docid": "5407090", "title": "", "text": "Francetich claim that their conduct falls within the scope of their duties in determining when to bring dependency proceedings, and thus they are protected by absolute immunity under our decision in Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987). We disagree. In Meyers, we held that social workers are entitled to absolute immunity when performing “quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings.” 812 F.2d at 1157. We then defined “quasi-prosecutorial functions” as those instances where a social worker contributes as an advocate to an informed judgment by an impartial decisionmaker. Id. In a later case, Coverdell v. Department of Social & Health Services, 834 F.2d 758 (9th Cir.1987), we extended absolute immunity to include “quasi-judicial” actions in the context of child welfare proceedings, such as the execution of a court order. Id. at 764-65. The actions taken by Farnsworth and Francetich were neither quasi-prosecutorial nor quasi-judicial in nature. The defendants’ actions did not aid in the preparation or presentation of a case to the juvenile court, see Meyers, 812 F.2d at 1157, nor were these actions taken in connection with or incident to ongoing child dependency proceedings, see Babcock v. Tyler, 884 F.2d 497, 503 (9th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990). Indeed, the procedure of transporting the children out of Montana to their mother in Washington seemed designed to avoid adjudication in the Montana courts altogether. See Weller v. Department of Social Servs., 901 F.2d 387, 396 (4th Cir. 1990). Because the defendants were not acting under the supervision of a court, it is the qualified immunity standard, rather than the absolute immunity standard, which must govern their conduct. See Meyers, 812 F.2d at 1158. Under the doctrine of qualified immunity, social workers are shielded from liability where their official conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738," }, { "docid": "22690350", "title": "", "text": "spoken in office.”)). Imbler also settled the general scope and rationale of a prosecutor’s immunity. Only in “initiating a prosecution and in presenting the State’s case” is the prosecutor absolutely immune. Imbler, 424 U.S. at 431, 96 S.Ct. 984. That is because the prosecutor often must make “decisions that, could engender colorable claims of constitutional deprivation” upon short notice and with poor information. Id. at 425, 96 S.Ct. 984. Exposing a prosecutor, years and many cases later, to civil damages for a particular prosecutorial decision could impose intolerable burdens on the prosecutor and unduly hamper the prosecutor’s performance. Id. at 425-26, 96 S.Ct. 984. There are protections from abuse despite this broad grant of immunity. The duties of the trial judge, and the adversarial and appellate processes, are designed to prevent many potential violations of constitutional rights. See Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Our court has recognized that family-service social workers, like appellant Gam-mie in this case, appear to perform some functions similar to those of prosecutors, but perform other functions as well. Our relevant circuit law begins with Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987), where we took a narrow view of absolute immunity for social workers. In Meyers, we held that the initiation and pursuit of child-dependency proceedings were prose-cutorial in nature and warranted absolute immunity on that basis. We were careful there, however, to distinguish between a social worker’s activities performed as an advocate within the judicial decision-making process, a function for which there is common-law absolute immunity, and other actions taken by a social worker. Id. at 1157. We found that unless the social worker’s activity has the requisite connection to the judicial process, only qualified immunity is available. See id. at 1158. Babcock extended the coverage of absolute immunity to include post-adjudication activities. Babcock, 884 F.2d at 503. Our court in Babcock saw a fundamental inconsistency in protecting social workers from liability for actions taken up through the adjudication of dependency, and then exposing them, to liability for the" }, { "docid": "22690356", "title": "", "text": "no power of decision in the judicial sense. Id. at 437 n. 11, 113 S.Ct. 2167. Kalina rejected absolute immunity for a prosecutor attesting to facts in an affidavit supporting an application for an arrest warrant. The function was held to be similar to that of a complaining, out-of-court witness. The Court concluded that acting as such a witness is not a function that requires the exercise of an advocate’s judgment. Kalina, 522 U.S. at 129-31, 118 S.Ct. 502. Our decision in Meyers is consistent with the controlling Supreme Court decisions. Meyers recognized absolute immunity for social workers only for the discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents. Meyers, 812 F.2d at 1157. At least two of our sister circuits have also recognized that the scope of absolute immunity for social workers is extremely narrow. See, e.g., Snell v. Tunnell, 920 F.2d 673, 686-91 (10th Cir.1990) (denying absolute immunity to social workers for the function of seeking a protective custody order that did not initiate court proceedings); Vosburg v. Dep’t of Soc. Servs., 884 F.2d 133, 135-38 (4th Cir.1989). In Vosburg, citing our court’s decision in Meyers, the Fourth Circuit held social workers absolutely immune from liability resulting from a decision to file a removal petition, which was deemed prosecutorial, but not immune for investigating whether a removal petition should be filed. See id. Here, the district court was obligated to examine the functions Gammie and Zito performed; however, those functions were unclear. Moreover, the defendants bear the burden of showing that their respective common-law functional counterparts were absolutely immune. It would appear that the critical decision to institute proceedings to make a child a ward of the state is functionally similar to the prosecutorial institution of a criminal proceeding. The decision, therefore, is likely entitled to absolute immunity. It also may be that some submissions to the court by social workers are functionally similar to the conduct recognized at common law to be protected by absolute prosecutorial immunity. See, e.g., Imbler, 424 U.S. at 431, 96 S.Ct. 984. To the extent, however," }, { "docid": "13448041", "title": "", "text": "i.e., prosecutors and officials performing functions intimately associated with judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983); Imbler v. Pachtman, 424 U.S. 409, 424-26, 96 S.Ct. 984, 992-93, 47 L.Ed.2d 128 (1976). The ramifications of absolute immunity justify it only when required by considerations of public policy. The official seeking absolute immunity bears the burden of showing that public policy requires such immunity. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). Absolute immunity for child welfare workers has been based on two theories. First, the initiation of child abuse or custody proceedings has been found to be analogous to that of a prosecutor who is cloaked with absolute immunity. Imbler, 424 U.S. at 420, 96 S.Ct. at 990, et seq.; Dacey v. Dorsey, 568 F.2d 275, 278 (1978); see, e.g., Meyers v. Contra Costa County Dept. of Social Serv., 812 F.2d 1154, 1156-57 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987) (responsibility of child services workers for bringing dependency proceedings, and the discretion to determine when to bring such proceedings, found to be analogous to the function of a prosecutor). Absolute immunity has also been based on reasoning that such immunity is necessary to allow for proper investigation and intervention in cases of suspected child abuse. See, e.g., Mazor v. Shelton, 637 F.Supp. 330 (N.D.Cal.1986); Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983). The Second Circuit has declined to extend absolute immunity to all phases of processing child abuse complaints. Robison v. Via, 821 F.2d 913, 919-20 (2d Cir.1987). The “strong emotional response provoked in anyone hearing an allegation of child abuse” counseled against absolute immunity for taking a child into custody. Id. at 920. Qualified immunity was found to strike the better balance between the state’s interest in protecting children from abuse and the family’s right to privacy. Id.; see also Hodorowski v. Ray, 844 F.2d 1210, 1215-16 (5th Cir.1988). Defendants nonetheless contend that their challenged actions are sufficiently analogous to the prosecutorial function to" }, { "docid": "22240521", "title": "", "text": "parent or caretaker. Thus, the civil nature of child dependency proceedings, per se, has not been a bar to absolute immunity for social workers. See Meade v. Grubbs, 841 F.2d 1512, 1532-33 n. 18 (10th Cir.1988) (extending absolute immunity to duty to initiate civil complaint after applying functional analysis). The Ninth Circuit has adopted a rule of absolute immunity for child and dependency proceedings from origination until conclusion. In Meyers v. Contra Costa County Dep’t of Social Serv., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987), the court held that “social workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child and dependency proceedings.” However, absolute immunity did not extend to a social worker’s ordering a father to stay away from his home prior to a scheduled court hearing because such a function was not quasi-prosecutorial or quasi-judicial. Id. at 1157-58. Such conduct was not that of an advocate, but rather unilateral action prior to the operation of the judicial process. Id. at 1157. Relying upon Meyers, the Ninth Circuit has held that a social worker seeking a court order for immediate apprehension of a newborn from her natural mother is entitled to absolute immunity for such quasi-prosecutorial conduct. Coverdell v. Department of Social & Health Serv., 834 F.2d 758, 764 (9th Cir.1987). In Coverdell, the social worker completed an affidavit used by the prosecutor in obtaining custody of the child. Id. at 760. Under a theory of quasi-judicial immunity, the court determined that the social worker was entitled to absolute immunity for executing the order by obtaining custody of the child and removing her from the hospital. Id. at 764-65. Most recently, the Ninth Circuit determined that absolute immunity for a social worker extends beyond the adjudication of dependency to final disposition of the case. Babcock v. Tyler, 884 F.2d 497, 503 (9th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990). Accordingly, social workers who had placed two children in a home where they were sexually" }, { "docid": "6996188", "title": "", "text": "509 U.S. at 269, 113 S.Ct. 2606. State actors, including social workers, who perform functions that are “critical to the judicial process itself’ are entitled to absolute immunity. Miller, 335 F.3d at 896 (citing Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). “Beyond those functions historically recognized as absolutely immune at common law, qualified and only qualified immunity exists.” Id. at 897. We conclude that Herrera is entitled to absolute immunity for her actions in investigating and presenting evidence to the dependency court and that she is entitled to qualified immunity for her other challenged actions. A. The Does contend that Herrera both faded to investigate possible exculpatory evidence and fabricated evidence in the dependency petitions she submitted to the dependency court. Herrera, however, engaged in these actions as part of her initiation and pursuit of child dependency proceedings — she filed a dependency petition in state court on November 4, 1999, and dependency proceedings were held on November 5, 1999. Herrera’s actions therefore had the “requisite connection to the judicial process” to be protected by absolute immunity. Miller, 335 F.3d at 896. Indeed, in Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154, 1157 (9th Cir.1987), we recognized that “social workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings.” See also Imbler, 424 U.S. at 416, 431 & n. 34, 96 S.Ct. 984 (holding that prosecutors are entitled to absolute immunity “in initiating a prosecution and in presenting the State’s case,” even where the prosecutor willfully used perjured testimony and willfully suppressed exculpatory information at trial); Miller, 335 F.3d at 898; Mabe, 237 F.3d at 1109 (holding, where there were allegations that social workers did not conduct their investigation properly and submitted false evidence during juvenile court proceedings, that the social workers were entitled to absolute immunity because their actions were part of the initiation and pursuit of dependency proceedings). B. We next address Herrera’s actions in detaining Lacey prior to the child dependency proceedings and referring Lacey for" }, { "docid": "23117354", "title": "", "text": "their public duties free from fear that their actions might give rise to civil liability. Id. at 1156. The immunity must be absolute, rather than merely qualified, “to permit prosecutors to perform their duties without fear of even the threat of section 1983 litigation.” Id. (citing Imbler v. Pachtman, 424 U.S. 409, 424-26, 96 S.Ct. 984, 992-93, 47 L.Ed.2d 128 (1976)). For the same reasons, child services workers must be protected by absolute immunity: Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker’s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit. We therefore hold that social workers are entitled to absolute immunity in performing quasi-prose-cutorial functions connected with the initiation and pursuit of child dependency proceedings. Id. at 1157. Accord Mazor v. Shelton, 637 F.Supp. 330, 334-35 (N.D.Cal.1986). The holding in Meyers is consistent with the holdings of other courts. See, e.g., Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (employees of state department of social services who were instrumental in removing child from plaintiffs’ home and in placing child in foster homes enjoyed absolute immunity from liability for damages under section 1983); Mazor, 637 F.Supp. at 334-35 (county social worker who took custody of plaintiff’s son and arranged for his temporary placement in reliance on information that plaintiff was incapable of caring for him enjoyed absolute immunity from damages under section 1983) (“[T]he role of a social worker in the care of minors is sufficiently analogous to the role of a prosecutor to warrant absolute immunity.”); Hennessey v. State of Washington, Dep’t of Social and Health Services, 627 F.Supp. 137, 140 (E.D.Wash. 1985)" }, { "docid": "635750", "title": "", "text": "unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id. at 423, 96 S.Ct. at 991. Because the Court thought that exposure to section 1983 liability raised the same concerns for prosecutors as exposure to common-law tort liability, it held that, “in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Id. at 431, 96 S.Ct. at 995. The Court was careful to note, however, that its analysis focused on the prosecutor’s function, not on the prosecutor’s mere status: “We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.” Id. at 430-431, 96 S.Ct. at 995. A. Prosecutorial Immunity Officials with functions analogous to those of prosecutors have been accorded absolute immunity. In Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), for example, the Court extended prosecutorial immunity to executive branch officials charged with initiating and conducting administrative proceedings against individuals or corporations. Because these functions were sufficiently similar to the functions of prosecutors, the officials exercising them deserved absolute liability. Id. Appellants argue first that, like such administrative officials, TDHS child protective service workers are similar enough in function to prosecutors that they should be given absolute immunity- At least three other circuits have applied an Economou-Yike analysis in according absolute immunity to state child care social workers. Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987) held that a California social worker was absolutely immune from section 1983 liability for his actions in initiating dependency proceedings against a parent suspected of abusing his child. The court reasoned: Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in" }, { "docid": "3403827", "title": "", "text": "filing the removal petition, as well as their conduct in caring for Eva once the court had awarded custody of the child to DSS. Judge Hilton reasoned that in filing the petition, the social workers were functioning as prosecutors, and that under the Supreme Court’s decisions in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), they were entitled to absolute prose-cutorial immunity. The district court also held that once Eva was in the custody of DSS pursuant to the removal order, the appellees were acting as officers of the court, and were entitled to absolute quasi-judicial immunity for their supervision of the child. II. The Vosburgs contest only that part of the district court’s decision that found the social workers absolutely immune with respect to their conduct in preparing and filing the removal petition. They argue that the function of a social worker in this situation is more analogous to that of a police officer than that of a prosecutor. Therefore, they claim, under the Supreme Court’s decision in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the appellees are entitled to only a qualified, good faith immunity. We find, however, that in filing the Removal Petition the social workers were acting in a prosecutorial, rather than an investigative or “policing” capacity. Under Im-bler and Butz, therefore, these state agents must be afforded absolute immunity from any liability arising from this conduct. Imbler held that prosecutors are absolutely immune from § 1983 actions for conduct occurring within the scope of their duties in initiating and pursuing a criminal prosecution. In making this determination the court first reviewed the considerations underlying the grant of absolute immunity traditionally afforded prosecutors under the common law, and concluded that “the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983.” 424 U.S. at 424, 96 S.Ct. at 992, 47 L.Ed.2d at 140. Those public policy considerations included the fact that a prosecutor is" }, { "docid": "5373033", "title": "", "text": "L.Ed.2d 673 (1980); Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), and those based upon a test of \"functional comparability.” Mazor v. Shelton, 637 F.Supp. 330, 333 (N.D.Cal.1986); quoting Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). In the latter case, the Supreme Court has \"compared the functions of certain officials to the functions of analogous officials who enjoyed immunity under common law ... emphasizing] that the nature of the official’s function, not his or her status determines whether an official enjoys absolute or qualified immunity.” Mazor, 637 F.Supp. at 334, citing Imbler, 424 U.S. at 423 n. 20, 96 S.Ct. at 991 n. 20; Butz, 438 U.S. at 511-12, 98 S.Ct. at 2913-14; Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 41 (1985); Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir.1983). In Imbler the Supreme Court granted absolute immunity to prosecutors acting within the scope of their prosecutorial duties. Imbler, 424 U.S. at 420, 96 S.Ct. at 990. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) the Court extended the rule of Imbler to provide absolute immunity for \"agency officials performing certain functions analogous to those of a prosecutor.” Butz, 438 U.S. at 515, 98 S.Ct. at 2915. In reliance on Imbler and Butz, a number of courts have extended absolute immunity to social workers, finding that \"the role of a social worker in the care of minors is sufficiently analogous to the role of a prosecutor to warrant absolute immunity.” Mazor, 637 F.Supp. at 334. See, e.g., Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984); Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987); Hennessey v. State of Washington, Department of Social and Health Services, 627 F.Supp. 137 (E.D.Wash.1985); Pepper v. Alexander, 599 F.Supp. 523 (D.N.Mex.1984); Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983); Malachowski v. City of Keene, 787 F.2d 704 (1st Cir.1986) (juvenile officer who initiates juvenile delinquency proceeding). These courts have reasoned that, like prosecutors," }, { "docid": "22690349", "title": "", "text": "L.Ed.2d 555 (1988); Imbler v. Pachtman, 424 U.S. 409, 418-24, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Thus, it was presumed that if Congress had wished to abrogate common-law immunity, it would have done so expressly. Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court in Imbler laid down an approach that granted state actors absolute immunity only for those functions that were critical to the judicial process itself. See Imbler, 424 U.S. at 430, 96 S.Ct. 984; see also Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). At common law, judges, prosecutors, trial witnesses, and jurors were absolutely immune for such critical' functions. See Burns, 500 U.S. at 490, 111 S.Ct. 1934 (quoting Lord Mansfield in King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772) (“[Njeither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”)). Imbler also settled the general scope and rationale of a prosecutor’s immunity. Only in “initiating a prosecution and in presenting the State’s case” is the prosecutor absolutely immune. Imbler, 424 U.S. at 431, 96 S.Ct. 984. That is because the prosecutor often must make “decisions that, could engender colorable claims of constitutional deprivation” upon short notice and with poor information. Id. at 425, 96 S.Ct. 984. Exposing a prosecutor, years and many cases later, to civil damages for a particular prosecutorial decision could impose intolerable burdens on the prosecutor and unduly hamper the prosecutor’s performance. Id. at 425-26, 96 S.Ct. 984. There are protections from abuse despite this broad grant of immunity. The duties of the trial judge, and the adversarial and appellate processes, are designed to prevent many potential violations of constitutional rights. See Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Our court has recognized that family-service social workers, like appellant Gam-mie in this case, appear to perform some functions similar to those of" }, { "docid": "22690351", "title": "", "text": "prosecutors, but perform other functions as well. Our relevant circuit law begins with Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987), where we took a narrow view of absolute immunity for social workers. In Meyers, we held that the initiation and pursuit of child-dependency proceedings were prose-cutorial in nature and warranted absolute immunity on that basis. We were careful there, however, to distinguish between a social worker’s activities performed as an advocate within the judicial decision-making process, a function for which there is common-law absolute immunity, and other actions taken by a social worker. Id. at 1157. We found that unless the social worker’s activity has the requisite connection to the judicial process, only qualified immunity is available. See id. at 1158. Babcock extended the coverage of absolute immunity to include post-adjudication activities. Babcock, 884 F.2d at 503. Our court in Babcock saw a fundamental inconsistency in protecting social workers from liability for actions taken up through the adjudication of dependency, and then exposing them, to liability for the subsequent, post-adjudication and placement decisions approved by court orders. Id. Thus, we held that all actions taken in “connection with” and “incident to” ongoing child dependency proceedings were entitled to absolute immunity. Id. Four years after Babcock, the Supreme Court held in Antoine, however, that absolute immunity shields only those who perform a function that enjoyed absolute immunity at common law. Even actions taken with court approval or under a court’s direction are not in and of themselves entitled to quasi-judicial, absolute immunity. Antoine, 508 U.S. at 435-36, 113 S.Ct. 2167. Instead, to enjoy absolute immunity for a particular action, the official must be performing a duty functionally comparable to one for which officials were rendered immune at common law. Therefore, a prosecutor’s submission of an affidavit to the court as a witness, as in Kalina, or a court reporter’s preparation of a transcript for the court, as in Antoine, were not absolutely immune because those functions were not absolutely immune at common law. The Court in Kalina further emphasized that it is only the" } ]

[ { "docid": "22746602", "title": "", "text": "worse. In Freedman v. Maryland, ante, p. 51, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Not only does the complaint allege far more than an “injury other than that incidental to every criminal proceeding brought lawfully and in good faith,” but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections — if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented — a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues. It follows that the District Court erred in holding that the complaint fails to allege sufficient irreparable injury to justify equitable relief. The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifi ably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities. First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants’ civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U. S. C. § 1983, as we believe they do, see Beauregard v. Wingard, 230 F. Supp. 167 (D. C. S. D. Calif. 1964); Bargainer v. Michal, 233 F. Supp. 270 (D. C. N. D. Ohio 1964)," } ]

[ { "docid": "20646432", "title": "", "text": "“special circumstances.” In order to obtain injunctive relief a petitioner must show more than the threat of injury which is “incidental to every criminal proceeding brought lawfully and in good faith . .” Rather, he must show a threat of great and immediate irreparable injury. In Dombrowski v. Pfister, irreparable injury to the petitioners was established where state officials had utilized a statute in bad faith and for the purpose of harassment. The court found full support for the allegations that: “the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” Finding that these threatened actions exerted a severe “chilling effect” upon the petitioners in the exercise of their First Amendment freedoms, and that “defense of the State’s criminal prosecution [would] not assure adequate vindication of [petitioners’] constitutional rights,” the Court granted an injunction. Subsequently, in Cameron v. Johnson, the Court affirmed the refusal of a federal district court to issue an injunction against enforcement of a state statute regulating picketing on the grounds that the statute was not vague and overbroad, and was not being utilized by the state in bad faith to discourage civil rights activities. It also stated that any chilling effect on picketing as a form of freedom of expression that might result from a good-faith enforcement of the statute was insufficient to justify injunctive relief. This reasoning was affirmed in Younger, in which the Court rejected the notion that “the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found ‘on its face’ to be vague or overly broad in violation of the First Amendment.” Other courts facing challenges to state abortion laws have adjudicated requests for injunctions in accordance with these principles. In Babbitz v. McCann, a federal district court held" }, { "docid": "12662347", "title": "", "text": "must also meet the standard spelled out by the Supreme Court in Jaycees: “Infringements on [the right to associate for expressive purposes] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” 468 U.S. at 623, 104 S.Ct. at 3252. The escort service licensing scheme fails to meet the third prong of this standard. In applying the Jaycees test, we look first to the interests that the county has asserted as justification for the regulation. Those interests fall into three broad categories: “the health and safety of the public, community, and tourists”; public morality and decency; and economic development. CCC § 8.32.010(C). The first is threatened by the dangers of infectious disease, see id. § 8.32.010(C)(d), violence to the escorts, see id. § 8.32.010(C)(m), and fraud against the patrons, see id. §§ 8.32.-010(C)(a, b, i, j). The second is implicated because the county believes the escort services are primarily prostitution operations. Id. § 8.32.010(C)(o). The third is affected because the escort services are “harmful to the cause of attracting tourists, visitors, and conventions to the county.” Id. § 8.32.010(C). These interests are unrelated to the suppression of ideas, and they may all be regarded as compelling. However, the Clark County regulation fails to satisfy the final element of the Jaycees test, because it is readily apparent that there are means of achieving the county’s goals that are “significantly less restrictive of associational freedoms.” Jaycees, 468 U.S. at 623, 104 S.Ct. at 3252. Indeed, most, if not all, of the evils that the county associates with escort bureaus can be (or have already been) addressed by criminal statutes targeted directly at the evils themselves. If the county is seeking to halt prostitution, it has already taken the least restrictive means of achieving that goal: it has outlawed prostitution. The other problems that the county ascribes to escort services can be relieved more directly and less harmfully by enacting, amending, and enforcing laws against fraud, coer cion, extortion, and pandering. The county admits" }, { "docid": "8647899", "title": "", "text": "activities statute which plaintiffs alleged was an unconstitutional infringement on their first amendment rights. Section 2283 was eliminated from consideration because Louisiana state officials had explicitly and publicly stated their intention to enforce the subversive activities statute against the plaintiffs, who were consequently apprised of the probability of prosecution in advance. Thus they were able to file their suit and to have the federal district court issue a temporary restraining order prior to the filing of any papers commencing criminal proceedings in the Louisiana courts. The Supreme Court held that, in light of the defendants’ bad faith, the presence of the unconstitutionally broad subversive activities statute effectively denied the plaintiffs their right of free speech, because “the threat of sanctions may deter -x- * * almost as potently as the actual application of sanctions.” It went on to develop the now-famous metaphor of the “chilling effect” on free speech that is one of the requirements for the availability of Dombrowski relief: “The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski v. Pfister, supra, 380 U.S. at 486-487, 85 S.Ct. at 1120-1121. Because of this chilling effect, which would have constituted irreparable injury to the plaintiffs, the Dombrowski Court concluded, first, that it had jurisdiction to grant the injunction requested and, second, that equitable abstention from deciding the case would be improper. In so holding, the Court deviated from a long line of cases, beginning with R. R. Comm’n of Texas v. Pullman Co., 1941, 312 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971, and Burford v. Sun Oil Co., 1943, 319 U.S. 315, 318, 324-327, 63 S.Ct. 1098, 87 L.Ed. 1424, in which it had held that the principle of comity between the state and federal sovereignties required a federal court to abstain from deciding difficult or unresolved questions of state law. Before Dombrowski, the abstention doctrine had been applied even to civil rights cases, and for that matter even to those involving first amendment freedoms that might be chilled." }, { "docid": "12662287", "title": "", "text": "BOOCHEVER, Circuit Judge: IDK, Inc., and other escort services located in the County of Clark appeal the district court’s entry of summary judgment that the county’s regulation concerning licensing and control of escort services and their employees is constitutional on its face. They contend the regulation violates the first and fourteenth amendments to the Constitution and seek a declaration that the regulation is unconstitutional, a permanent injunction against its enforcement, compensatory and punitive damages, and attorneys’ fees. We affirm. The regulation is facially constitutional because it does not reach a substantial amount of constitutionally protected activity and is not vague in all possible applications. FACTS Escort services provide their clientele with companions for a fee. The county has tried several times to control their operation. It contends that most if not all escort services are little more than “modified brothels.” In a previous attempt, the county prohibited working as a paid social companion or escort or operating an escort bureau as a business. The Supreme Court of Nevada held that the definitions of “social companion” and “escort” were unconstitutionally vague. Eaves v. Board of Clark County Comm’rs, 96 Nev. 921, 620 P.2d 1248 (1980). The definitions of these terms did not provide fair notice of the activities prohibited by the statute: social secretaries, babysitters, and companions for the aged and infirm could only guess whether they were guilty of impermissible conduct. Id. at 924, 620 P.2d at 1250. The county then enacted the regulation at issue here and has since amended it twice. On appeal, we review the regulation in its present form. Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Auth., 393 U.S. 268, 281-82, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). Subsections 40 and 50 of Chapter 8.32 in Title 8 of the Clark County Code (CCC) make it unlawful to operate an escort service or work as an escort without a license from the county. The regulation defines “escort” and “escort bureau” and distinguishes between “service oriented” and “sexually oriented” escorts and escort bureaus. CCC" }, { "docid": "12662342", "title": "", "text": "applicant to prove that he or she is deserving of a license, and gives the licensing officials broad discretion to grant or withhold permission to associate based on a number of subjective factors. Thus the licensing scheme is not simply a restriction on the time, place, and manner in which the escort services do business. To the contrary, the escort services cannot do business at all unless the state, in the exercise of its discretion, allows them to do so. Although the regulation does not ban protected activity outright, it clearly “inhibits the ability or the inclination to engage” in such activity. Kev, 793 F.2d at 1060. Accordingly, the Clark County regulation must meet stricter standards than the regulations at issue in Kev and in the zoning cases. Restrictions on the right of expressive association (other than time, place, and manner restrictions) are impermissible unless inter alia they are drawn narrowly and with specificity and constitute the least restrictive means of advancing the state’s interests. The Clark County licensing scheme meets none of these requirements. A. Arbitrary and Discriminatory Enforcement A discretionary licensing provision, under which the licensing authority decides whether protected activity may or may not be carried on, raises the danger of arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). For this reason, such a provision must inter alia meet a very high standard of specificity. Where a first amendment right is implicated, as it is here, we must ensure that the regulation under challenge has been carefully drafted and that it provides adequate standards to guide law enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). In several cases, the Supreme Court has overturned ordinances that required licenses or permits for the exercise of first amendment rights because of the danger of arbitrary enforcement. For example, in Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), the Court reversed a conviction under a local ordinance requiring a permit for any" }, { "docid": "22603586", "title": "", "text": "a federally protected act is punishment for that act. The cost of proceeding court by court until the federal right is vindicated is great. Restraint of liberty may be present; the need to post bonds may be present; the hire of a lawyer may be considerable; the gantlet of state court proceedings may entail destruction of a federal right through unsympathetic and adverse fact-findings that are in effect unre-viewable. The presence of an unresolved criminal charge may hang over the head of a defendant for years. In early 1964, for example, the Supreme Court of Mississippi affirmed convictions in harassment prosecutions arising out of the May 1961 Freedom Rides. See Thomas v. State, 252 Miss. 527, 160 So. 2d 657; Farmer v. State, 161 So. 2d 159; Knight v. State, 248 Miss. 850, 161 So. 2d 521. More than another year was to pass before this Court reached and reversed those convictions. Thomas v. Mississippi, 380 U. S. 524 (1965). Continuance of an illegal local prosecution, like the initiation of a new one, can have a chilling effect on a federal guarantee of civil rights. We said in NAACP v. Button, 371 U. S. 415, 433, respecting some of these fed eral rights, that “[t]he threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.” In a First Amendment context, we said: “By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski v. Pfister, 380 U. S. 479, 487. The latter ease was a suit to enjoin a state prosecution. The present cases are close kin. For removal, if allowed, is equivalent to a plea in bar granted by a federal" }, { "docid": "12662331", "title": "", "text": "by the state of Nevada or county of Clark pursuant to a specific statute or ordinance, and all employees employed by a business so licensed, and which perform an escort or escort bureau function as a service merely incidental to the primary function of such profession, employment or business and which do not hold themselves out to the public as an escort or escort bureau, are exempt from licensing pursuant to this chapter. Any employment agency, licensed by the state, which provides escorts as defined herein, must, however, obtain a license as required by this chapter. CCC § 8.32.150. REINHARDT, Circuit Judge, dissenting: I dissent. I would invalidate the Clark County licensing regulation on constitutional grounds. The regulation makes it unlawful to operate an escort bureau without a license or to work as an escort unless employed by a licensed bureau. Clark County Code (CCC) §§ 8.32.040, 8.32.050 (1985). However, licenses are not issued automatically. Rather, the licensing officials are granted broad discretion to deny, suspend, and revoke licenses. Id. §§ 8.32.080(I-J), 8.32.140. For example, the licensing board can deny an application if the applicant is not a person “of good character, honesty and integrity,” id. § 8.32.080(I)(1), or if the applicant or his or her source of financing is not “suitable,” id. §§ 8.32.080(J)(1), 8.32.080(I)(3). The regulation defines “escort” as anyone “who is held out to the public to be available for hire” and who, for monetary consideration, “consort[s] with, or accompanies ... another or others to or about social affairs, entertainments or places of amusement or within any place of public resort or within any private quarters.” Id. § 8.32.060(A). I believe that the licensing scheme, because it is targeted directly at people’s ability to associate with one another, regulates constitutional freedom of association and should therefore be carefully scrutinized. Applying traditional first amendment principles, I conclude that the regulation is vague and overbroad and does not constitute the least restrictive means of promoting the county’s interests. I. APPLICABILITY OF THE FIRST AMENDMENT It is well established that freedom of association is an “inseparable aspect” of the freedom" }, { "docid": "4754957", "title": "", "text": "on the ground that these allegations did not present a case of threatened irreparable injury to constitutional rights warranting the intervention of a federal court. We reversed. The Court, at the outset, fully and explicitly accepted the teaching of the cases “that federal interference with a State’s good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework” and that “the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.” 380 U. S., at 484-485. Without questioning the rule that the possible invalidity of a state statute is not itself ground for equitable relief, Terrace v. Thompson, 263 U. S. 197, 214, or the imminence of prosecution under such a statute, since no person is immune from prosecution in good faith for alleged criminal acts, Douglas v. City of Jeannette, 319 U. S. 157, 163-164, we held that there was a sufficient showing of threatened irreparable injury to federal rights, which could not be dissipated by a particular prosecution, to warrant equitable intervention by a federal court. What was controlling on both the exercise of equitable power and the abstention issue was the depiction of a “situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights.” 380 U. S., at 485. The situation depicted here does not contain the elements which were operative in Dombrowski. Dombrowski did not hold that the traditional equitable limitations on a federal court’s power to enjoin imminent or pending criminal proceedings are relaxed whenever a statute is attacked as void on its face or as applied in violation of the First and Fourteenth Amendments. Rather that case makes clear that two particular kinds of challenges to state criminal statutes warrant extraordinary intervention in a State’s criminal processes. They are planned prosecutorial misuse of a statute regulating freedom of expression and a vagueness attack on such a statute. Where threats of enforcement are without any expectation of conviction and are “part of a plan to employ arrests, seizures, and threats" }, { "docid": "12662356", "title": "", "text": "Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county’s goals, and it encompasses associations that are unrelated to those goals. It is “unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.” Coates, 402 U.S. at 614, 91 S.Ct. at 1688. For these reasons, I respectfully dissent from the majority’s decision. . It appears from the arguments and the record that Clark County believes that all escort services are engaged in the business of prostitution. Nevertheless, it has decided to license those services. We cannot assume that the escort services are by definition unlawful businesses, for if they were, the county could not license them. To the contrary, we must assume that the businesses that are to be licensed offer lawful association. Indeed, the regulation makes it clear that the only escort services that are entitled to licenses are those that provide lawful association. Thus we must assess the regulation in terms of its effect on lawful services and lawful association. . It is true that commercial activity may be regulated even where constitutional freedoms are implicated. See Paris Adult Theatre v. Slaton, 413 U.S. 49, 61-62, 93 S.Ct. 2628, 2637-38, 37 L.Ed.2d 446 (1973). The mere presence of first amendment activity does not guarantee insulation from normal business regulations; nor must such ordinary regulations withstand any judicial scrutiny stricter than rationality review just because they have an incidental impact on the exercise of constitutional rights. See Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); see also Jaycees, 468 U.S. at 634-35, 104 S.Ct. at 3258-59 (O'Connor, J., concurring in part and concurring in the judgment). But bc-cause" }, { "docid": "8647898", "title": "", "text": "some cases to protect the exercise of civil rights. Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. Our task here is to resolve the conflicting implications of § 1983 and § 2283 in light of the first amendment freedoms involved. A. The Comity Nature of Section 2283 in the First Amendment Context We begin, as did this Court in Ma-chesky v. Bizzell, by eliminating the question whether § 1983 or Dombrowski creates an “express exception” to § 2283, because we reach our decision on the narrower basis of the comity nature of 2283 itself. The decisions of the Supreme Court, and the decisions of the federal courts in general, provide only a vague guide to our determination. In Dombrowski v. Pfister, the most important of the cases granting relief of the type requested here, the Supreme Court was not faced with the problem of § 2283 because of the peculiar facts of the case. Dombrowski concerned an action brought under § 1983 to enjoin the enforcement of a Louisiana subversive activities statute which plaintiffs alleged was an unconstitutional infringement on their first amendment rights. Section 2283 was eliminated from consideration because Louisiana state officials had explicitly and publicly stated their intention to enforce the subversive activities statute against the plaintiffs, who were consequently apprised of the probability of prosecution in advance. Thus they were able to file their suit and to have the federal district court issue a temporary restraining order prior to the filing of any papers commencing criminal proceedings in the Louisiana courts. The Supreme Court held that, in light of the defendants’ bad faith, the presence of the unconstitutionally broad subversive activities statute effectively denied the plaintiffs their right of free speech, because “the threat of sanctions may deter -x- * * almost as potently as the actual application of sanctions.” It went on to develop the now-famous metaphor of the “chilling effect” on free speech that is one of the requirements for the availability of Dombrowski relief: “The chilling effect upon the exercise of First Amendment rights may derive from the" }, { "docid": "12662288", "title": "", "text": "and “escort” were unconstitutionally vague. Eaves v. Board of Clark County Comm’rs, 96 Nev. 921, 620 P.2d 1248 (1980). The definitions of these terms did not provide fair notice of the activities prohibited by the statute: social secretaries, babysitters, and companions for the aged and infirm could only guess whether they were guilty of impermissible conduct. Id. at 924, 620 P.2d at 1250. The county then enacted the regulation at issue here and has since amended it twice. On appeal, we review the regulation in its present form. Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Auth., 393 U.S. 268, 281-82, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). Subsections 40 and 50 of Chapter 8.32 in Title 8 of the Clark County Code (CCC) make it unlawful to operate an escort service or work as an escort without a license from the county. The regulation defines “escort” and “escort bureau” and distinguishes between “service oriented” and “sexually oriented” escorts and escort bureaus. CCC § 8.32.060(AHB). Sexually oriented es cort bureaus may not receive licenses and escort bureaus that operate in a sexually oriented manner may have their licenses revoked. CCC §§ 8.32.080(J), 8.32.140(d). Advertising that suggests escorts will provide “sexual stimulation” or “sexual gratification” is prohibited, CCC § 8.32.120; those terms are defined elsewhere in the regulation. CCC § 8.32.060(QMR). Applicants must meet detailed criteria and comply with strict reporting requirements to qualify for a license. CCC § 38.32.080(B)-(F), (I)-(J). The plaintiffs were granted licenses under the first version of the challenged regulation. In a previous action involving different plaintiffs, the Supreme Court of Nevada found that the regulation was not unconstitutionally overbroad or vague and refused to grant a preliminary injunction against its enforcement. Republic Entertainment, Inc. v. Clark County Liquor & Gambling Licensing Bd., 99 Nev. 811, 672 P.2d 634 (1983). The district court reached the same conclusion in this case and denied IDK’s request for a preliminary injunction, IDK Inc. v. County of Clark, 599 F.Supp. 1402 (D.Nev.1984), and later granted the county’s motion for" }, { "docid": "22168403", "title": "", "text": "action seeking declaratory and injunctive relief from threatened prosecution under a state anti-subversive statute. The plaintiff alleged, first, that the prosecution was instituted in bad faith solely to discourage civil rights activities and, second, that the statute was an unconstitutionally vague regulation of freedom of expression. The district court dismissed, applying traditional equitable limitations on a federal court’s power to enjoin state criminal proceedings and also the doctrine of abstention. On appeal, the Supreme Court reversed, indicating that either ground, if proven, justified federal equitable relief. The Court stated, [t]he allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury. 380 U.S. at 485-486, 85 S.Ct. at 1120. The Court also held that federal abstention was improper “where * * * statutes are justifiably attacked on their face as abridging free expression or as applied for the purpose of discouraging protected activities.” Id. at 489-490, 85 S.Ct. at 1122. The controlling consideration on the abstention issue, as on the question of equitable relief, was the inability of the state court proceedings to assure expeditious vindication of federal rights. Id. at 490-492, 85 S.Ct. 1116. Cf. Cameron v. Johnson, 381 U.S. 741, 755, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965) (dissenting opinion). In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the Supreme Court again indicated that the federal courts may not defer to the state courts where deference is likely to result in a substantial impairment of federal rights. The appellant in Zwickler had sought injunctive and declaratory relief in a federal district court from threatened enforcement of a state statute making it unlawful to distribute anonymous political handbills. Appellant contended that this statute was an overbroad regulation of expression. A three-judge district court applied the abstention doctrine, reasoning that abstention was" }, { "docid": "21227574", "title": "", "text": "in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition an ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury. “A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. People of State of California, 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205] [1959]. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption, .that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S. [360], at 379 [84 S.Ct. 1316, 12 L.Ed.2d 377].” Id. 380 U.S. at 485-486, 85 S.Ct. at 1120-1121. Moreover, Dombrowski sanctioned an injunction, the effect of which was to terminate all prosecutions in the state court — there could be none in the federal court — while here removal would merely substitute a féderal forum for the trial of the criminal prosecutions. Prior to Dombrowski the use of federal injunctions to stay state court proceedings was severely inhibited by the abstention doctrine. The parallel is obvious between that doctrine and the Rives-Powers insistence that federal constitutional rights be first litigated in state courts. Both restrictions rest on the assumption that federal constitutional rights will be vindicated by the states, or if not, then the Supreme Court will be in a position eventually to give full effect to those rights. In carving out an exception to the strict application of the ab~ sention doctrine, Dombrowski recognizes a set of circumstances in which the assumption underlying both abstention and Rives-Powers is without validity, as where “[t]he chilling effect upon the exercise of First" }, { "docid": "9762228", "title": "", "text": "charges against Spargo. In support of their independent First Amendment claims, McNally and Kermani both allege that they have been adversely affected by the defendants’ actions in pursuing judicial misconduct charges against Spargo. McNally alleges that “the threat of sanctions against Spargo” and other judicial candidates whom McNally may support in the future “impedes her freedom of speech, including her ability and desire to nominate and show support for particular candidates as a delegate to future Democratic Judicial Nominating Conventions.” Similarly, Kermani contends that he is “adversely affected because, as a member and chairman of the Republican Party, he is restrained from associating with Spargo out of concern that [the] association would adversely impact Spargo.” Kermani also alleges that he “has declined to invite Spargo to address [the Republican Party], despite a desire to do so, out of concern that such activity would result in [additional] charges being brought against Spargo.” In expedited proceedings before the District Court, plaintiffs obtained a temporary restraining order barring the Commission from taking any further disciplinary action against Spargo. Deeming the matters in dispute to be strictly questions of law, the District Court consolidated the preliminary injunction hearing with a trial on the merits of plaintiffs’ First Amendment and Equal Protection claims. On February 20, 2003, the District Court issued its order and decision, declaring the challenged judicial conduct rules facially unconstitutional and permanently enjoining defendants from enforcing the challenged rules. See Spargo, 244 F.Supp.2d at 92. In reaching its decision, the District Court acknowledged that “[t]here is ‘a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.’ ” Id. at 82 (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). However, the Dis trict Court determined that Younger abstention did not extend to McNally’s and Kermani’s constitutional claims as neither was a party to the pending disciplinary proceeding against Spargo, or otherwise subject to the Commission’s authority, and McNally and Kermani would therefore have no opportunity to raise their claims in Spargo’s disciplinary proceeding. See id." }, { "docid": "12662346", "title": "", "text": "F.2d 177 (9th Cir.1980) (upholding Nevada gaming statute granting Gaming Commission wide discretion in licensing). Here, however, the regulation vests in the licensing board the discretion to allow or disallow protected association. In the present context, the use of words like “suitable,” “threat to the public interest,” and “morals of the community” raises the possibility that the licensing officials will enforce the law arbitrarily or in such a way as to require others to “comport themselves according to the life style deemed appropriate” by those in authority. Papa-christou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972) (overturning vagrancy ordinance on vagueness grounds); see Coates, 402 U.S. at 616, 91 S.Ct. at 1689 (prohibition against “annoying” associations invited discriminatory enforcement against those whose ideas or lifestyle were unpopular). The freedom to engage in protected association, like the freedom to hold a public demonstration or to distribute handbills, cannot be made dependent on such uncontrolled discretion. B. Least Restrictive Means Because the Clark County regulation affects associational rights, it must also meet the standard spelled out by the Supreme Court in Jaycees: “Infringements on [the right to associate for expressive purposes] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” 468 U.S. at 623, 104 S.Ct. at 3252. The escort service licensing scheme fails to meet the third prong of this standard. In applying the Jaycees test, we look first to the interests that the county has asserted as justification for the regulation. Those interests fall into three broad categories: “the health and safety of the public, community, and tourists”; public morality and decency; and economic development. CCC § 8.32.010(C). The first is threatened by the dangers of infectious disease, see id. § 8.32.010(C)(d), violence to the escorts, see id. § 8.32.010(C)(m), and fraud against the patrons, see id. §§ 8.32.-010(C)(a, b, i, j). The second is implicated because the county believes the escort services are primarily prostitution operations. Id. § 8.32.010(C)(o). The third" }, { "docid": "12695491", "title": "", "text": "deprive respondent of the opportunity for federal correction of any denial of federal constitutional rights in the state proceedings. To the extent that such rights have been violated, cf., e. g., Mapp v. Ohio [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081], supra, he may raise the objection in the state courts and then seek review in this Court of an adverse determination by the New York Court of Appeals. To permit such claims to be litigated collaterally, as is sought here, would in effect frustrate the deep-seated federal policy against piecemeal review.” While Stefanelli and Cleary are persuasive authority in resolving the matter presently before the Court, counsel for the Plaintiff Turco contend that such precedents lose much of their force in view of the Supreme Court’s decision in the important case of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1964). In Dombrowski, the plaintiffs invoked relief under the Civil Rights Act, 42 U.S.C. Section 1983, to prevent by injunction their threatened prosecution under Louisiana’s Subversive Activities and Communist Control law and Communist Propaganda Control law which the complaint alleged were so broad and vague on their face that they interfered with First Amendment guaranties of freedom of expression. The Court did not feel inhibited by the anti-injunction statute (28 U.S.C. A. Section 2283), as it observed that this statute does not preclude injunctions against the commencement of state court proceedings, but only bars stays of suits already instituted. The Court felt that the factual situation merited an exception to the abstention doctrine because, as Mr. Justice Brennan stated (at pages 486 and 487, 85 S.Ct. at page 1120): “A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. * * * The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Mr. Kuntsler, counsel for Plaintiff Turco who also represented the plaintiffs in Dombrowski, seeks to analogize the present case" }, { "docid": "22168402", "title": "", "text": "been rigorously applied on numerous occasions to achieve the same result. Deference to the interests and autonomy of the states, however, does not forbid all prior restraint of state criminal proceedings or independent inquiry by a federal tribunal into questions inherently linked with the enforcement of state laws. The federal courts are vested with the primary responsibility of vindicating federal rights. Where state statutes or state conduct allegedly impair rights guaranteed by the Constitution and particularly the First Amendment thereto, federal deference to state tribunals ultimately depends on whether these tribunals can adequately preserve the federal rights of the individual. As is apparent from recent decisions of the United States Supreme Court and inferior federal courts, the fact that constitutional defenses may be raised in state court criminal proceedings does not in and of itself compel or even permit abstention. In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), for example, the Supreme Court clearly dispelled any notion that federalism requires automatic deference to state courts. Dombrowski involved a civil action seeking declaratory and injunctive relief from threatened prosecution under a state anti-subversive statute. The plaintiff alleged, first, that the prosecution was instituted in bad faith solely to discourage civil rights activities and, second, that the statute was an unconstitutionally vague regulation of freedom of expression. The district court dismissed, applying traditional equitable limitations on a federal court’s power to enjoin state criminal proceedings and also the doctrine of abstention. On appeal, the Supreme Court reversed, indicating that either ground, if proven, justified federal equitable relief. The Court stated, [t]he allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury. 380 U.S. at 485-486, 85 S.Ct. at 1120. The Court also held that federal abstention was improper “where * * * statutes" }, { "docid": "12662345", "title": "", "text": "the applicant is not a person “of good character, honesty and integrity,” CCC § 8.32.080(I)(1); if the applicant’s prior activities, reputation, habits, or associations “pose a threat to the public interest of the county,” id. § 8.32.080(I)(2); if the escort service’s source of financing is not “suitable,” id. § 8.32.080(J)(1); if “unsuitable persons” are or will be involved in the escort service’s day-to-day operations or have a financial interest in the service, id. §§ 8.32.-080(J)(9-10); if the applicant is not “[i]n all other respects qualified to be licensed” or is not “found suitable consistently with the declared policy of this chapter,” id. § 8.32.080(I)(3); or for “any cause deemed reasonable,” id. § 8.32.080(J)(11). A license may also be suspended or revoked if the licensee or any of its partners, managers, or employees has “[conducted or maintained the business in a manner contrary to the peace, safety, general welfare or morals of the community.” Id. § 8.32.140(j). Such criteria are acceptable where the activity being licensed is not constitutionally protected. See, e.g., Jacobson v. Hannifin, 627 F.2d 177 (9th Cir.1980) (upholding Nevada gaming statute granting Gaming Commission wide discretion in licensing). Here, however, the regulation vests in the licensing board the discretion to allow or disallow protected association. In the present context, the use of words like “suitable,” “threat to the public interest,” and “morals of the community” raises the possibility that the licensing officials will enforce the law arbitrarily or in such a way as to require others to “comport themselves according to the life style deemed appropriate” by those in authority. Papa-christou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972) (overturning vagrancy ordinance on vagueness grounds); see Coates, 402 U.S. at 616, 91 S.Ct. at 1689 (prohibition against “annoying” associations invited discriminatory enforcement against those whose ideas or lifestyle were unpopular). The freedom to engage in protected association, like the freedom to hold a public demonstration or to distribute handbills, cannot be made dependent on such uncontrolled discretion. B. Least Restrictive Means Because the Clark County regulation affects associational rights, it" }, { "docid": "12662315", "title": "", "text": "care what the couples talk about or whether they talk at all. The escort services cannot claim that expression constitutes anything but an incidental aspect of their commercial activity. IY. The Escort Services’ Facial Challenge We conclude that the Constitution may afford some protection to dating and other social groups because of their value as intimate and expressive associations. The escort services, however, have little claim on the protections afforded intimate associations because the relationship between an escort and client possesses almost none of the constitutional aspects of intimate associations. They also lack a substantial claim to the protections given expressive associations because the escort services’ activities and purposes are primarily commercial rather than communicative. As the county’s regulation does not reach a substantial amount of constitutionally protected conduct, the escort services’ facial challenge alleging an impermissible burden on their rights cannot succeed. A. Prior Restraint and Overbreadth The requirement of obtaining a license does not operate as a prior restraint on expression. As the activities of the escort services and their employees do not implicate substantial first amendment rights, the county may exercise some discretion in granting licenses. If the county revokes or denies licenses for arbitrary or constitutionally suspect reasons, the aggrieved party may challenge the application of the regulation in that specific context. We note that the county granted these plaintiffs licenses and therefore they may lack standing to challenge the licensing requirements as it applies to them. In any event, the fact that they have licenses militates against facial invalidation of the regulation. The regulation’s time, place, and manner restrictions on the operation of escort services are valid. The plaintiffs’ attack for over-breadth also fails. The regulation’s bounds are sufficiently clear that there is no substantial instrusion on noncommercial social associations. Flipside, 455 U.S. at 494-96, 102 S.Ct. at 1191-92; Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917. To the extent that the escort services’ challenge for over-breadth asserts the rights of other business associations involved in significant amounts of expressive activities, it fails because such a challenge cannot be made in a commercial context." }, { "docid": "12662357", "title": "", "text": "license them. To the contrary, we must assume that the businesses that are to be licensed offer lawful association. Indeed, the regulation makes it clear that the only escort services that are entitled to licenses are those that provide lawful association. Thus we must assess the regulation in terms of its effect on lawful services and lawful association. . It is true that commercial activity may be regulated even where constitutional freedoms are implicated. See Paris Adult Theatre v. Slaton, 413 U.S. 49, 61-62, 93 S.Ct. 2628, 2637-38, 37 L.Ed.2d 446 (1973). The mere presence of first amendment activity does not guarantee insulation from normal business regulations; nor must such ordinary regulations withstand any judicial scrutiny stricter than rationality review just because they have an incidental impact on the exercise of constitutional rights. See Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); see also Jaycees, 468 U.S. at 634-35, 104 S.Ct. at 3258-59 (O'Connor, J., concurring in part and concurring in the judgment). But bc-cause the Clark County licensing scheme grants wide discretion to the licensing officials, it cannot be considered simply a routine business regulation. See discussion infra. . In support of its claim that the escort services are \"primarily commercial enterprises,\" the majority contends that expression is not \"a significant or necessary component of their activities.” Majority at 1195. While in my view that contention is fallacious, I do not discuss it separately because the major premise — the expressive/commercial dichotomy — is, as I have suggested, erroneous. .Thus the majority is wrong to declare that the escort services’ overbreadth challenge \"cannot be made in a commercial context.\" Majority at 1197. The cases hold only that overbreadth does not apply in the commercial speech context. Bates, 433 U.S. at 381, 97 S.Ct. at 2707; see also Virginia Pharmacy, 425 U.S. at 771 n. 24, 96 S.Ct. at 1830 n. 24 (\"[s]ince advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled”). IDK may have a commercial interest in protected association, but" } ]

[ { "docid": "3512723", "title": "", "text": "the ultimate “reasonable officer” determination leads to serious logistical difficulties. Special jury verdicts would unnecessarily complicate easy cases, and might be unworkable in complicated ones. See Act Up!, 988 F.2d at 876-77 (Norris, J., dissenting from failure of court to hear case en banc). On the other hand, there is no reason to think that allowing the jury rather than the judge to determine whether an officer’s conduct was reasonable under the circumstances would be inimicable to the policies that animate immunity. On the contrary, evaluating the reasonableness of human conduct is undeniably within the core area of jury competence. Just as the judge can most effectively determine whether a given constitutional right was “clearly established” at a particular point in time, the jury is best suited to determine the reasonableness of an officer’s conduct in light of the factual context in which it takes place. The holdings and rationale of Hunter and Act Up!, though helpful, do not decide this case. Nor need we decide here whether judge or jury should be the ultimate decider once disputed foundational facts have been decided by the jury. In this case, the factual findings the jury must have made in imposing liability on Hale would require the district court to deny him qualified immunity in any event. Therefore, even if the court erred in sending the qualified immunity determination to the jury, the error was harmless. Hale’s motives for the actions he took were at issue. In imposing liability on Hale, the jury necessarily found that Hale intended to interfere with Sloman’s political activity and that it was a substantial or motivating factor in his conduct. See Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 463-464 (9th Cir.1994) (applying intent-based, retaliatory discharge framework to similar First Amendment claim). The jury heard testimony that Sloman was not in fact violating any laws when Hale warned and cited him, and that Hale had a strong dislike for Sloman’s political beliefs, which he had on a previous occasion allowed to intrude into his police work. See Part II., infra (describing the predicates for the" } ]

[ { "docid": "7912760", "title": "", "text": "dispute, the essential facts concerning the defense of qualified immunity were not in dispute. Once a law enforcement officer asserts qualified immunity, “the district court must determine whether, in light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful.” Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). This requires a two-step analysis: “1) Was the law governing the official’s conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?” Id. An official is entitled to qualified immunity even where reasonable officers could disagree as to the lawfulness of the official’s conduct, so long as that conclusion is objectively reasonable. Id. at 872. The threshold determination of whether the law is clearly established is a question of law for the court. See id. at 871. The second part of the test, whether a reasonable state official could have believed the action taken was lawful, is a mixed question of law and fact. It involves an objective test of whether a reasonable official could have believed that his conduct was lawful in light of what he knew and the action he took. If there are genuine issues of material fact in issue relating to the historical facts of what the official knew or what he did, it is clear that these are questions of fact for the jury to determine. The difficult issue is whether, when there are disputed issues of historical fact, the entire second mixed question of law and fact should be submitted to the jury under appropriate instructions as we do in negligence cases or whether the jury should be instructed only to find the historical facts with the judge to make the ultimate determination. This issue was discussed most recently in Sloman v. Tadlock, 21 F.3d 1462, 1467-69 (9th Cir.1994), noting Act Up!/Port land and Judge Norris’s dissent from failure of the court to hear that case en banc. As observed in Sloman, 21 F.3d at 1468, that issue has not been definitively resolved. However, where the essential" }, { "docid": "22841235", "title": "", "text": "that this determination is a duty of the court, even though the jury may have to resolve disputed questions of historical fact, I would suggest that the most sensible approach may be to bifurcate the trial between (1) an initial trial session after which the jury answers special interrogatories regarding what information was known to the officers and (2) a second session after which the jury decides what the officers did and the amount of damages, if any, to which the plaintiff is entitled. In the intermediate stage between the two trial sessions, the trial judge must decide, based on the findings of historical fact by the jury at the initial session, what alleged conduct would be unlawful — or, if a defendant claims qualified immunity, what alleged action would be clearly established as unlawful. I recognize that our precedents hold that the issue of probable cause or reasonable suspicion is for the jury when the historical facts are disputed. See DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir.1990). But when the historical facts are undisputed, we should not leave to the jury to determine whether those facts establish probable cause or reasonable suspicion. See Bell v. Irwin, 321 F.3d 637, 641 (7th Cir.2003). And it strikes me as peculiar for us to defer to the jury’s resolution of probable cause when the historical facts are disputed while we do not defer to the trial judge in the same circumstances, see United States v. Dozal, 173 F.3d 787, 792 (10th Cir.1999) (“We review the legal issue of probable cause de novo.”). Our only deference to the trial judge is in the findings of historical fact, not the determination whether the found facts establish probable cause or reasonable suspicion. See id. Of course, the judge can instruct the jury on the meaning of probable cause or reasonable suspicion, but the judge cannot fully inform the jury of the body of law that informs our decisions on these matters. The only acceptable alternative I can see to a bifurcated trial is for the jury instructions to provide what amounts to a" }, { "docid": "4507920", "title": "", "text": "denial of summary judgment we decided only that the fore-casted evidence, when viewed in the light most favorable to Willingham, established a violation of clearly established law. See id. at 852. The jury, however, was not required to view the facts in the light most favorable to Willingham, and thus could reasonably have found in favor of Willing-ham with respect to some facts but not others. Because we did not decide what a reasonable officer would have known regarding the lawfulness of his actions under any other version of events, the qualified immunity defense remained viable after our decision. C. Although we reject Willingham’s first contention, we agree with her second. The question of whether Sergeant Crooke was entitled to qualified immunity under the facts found by the jury — ie., whether a reasonable officer would have known that his actions violated the law — should not have been submitted to the jury. There is no question that when the historical facts are undisputed, whether a reasonable officer should have known of the illegality of his conduct is a question of law for the court. See, e.g., Wadkins v. Arnold, 214 F.3d 535, 538 n. 4 (4th Cir. 2000). The existence of disputed material facts- — which must be submitted to a jury, see Pritchett, 973 F.2d at 313 — does not alter the “essentially legal” nature of the question of whether the right at issue was clearly established. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Indeed, we indicated in Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir.2001), that this legal question should not be submitted to the jury. There, the district court submitted to the jury both disputed factual issues and the ultimate question of whether the defendant was entitled to qualified immunity on the basis that he could reasonably have believed that his actions were lawful. Although the defendant did not challenge the submission of that question to the jury, we noted our disapproval of the practice: [Ajlthough the jury may be suited for making factual findings relevant to the" }, { "docid": "7912758", "title": "", "text": "side of caution’ because they fear being sued.” Hunter, 502 U.S. at 229, 112 S.Ct. at 537 (citation omitted). Ideally, this should be decided at the earliest possible stage in the litigation because it is not only an immunity from liability but an immunity from suit. Id. at 227-28, 112 S.Ct. at 536-37. In this case, qualified immunity is not being decided at an early summary judgment stage but, instead, after an evidentiary trial of the case. Following our opinion in Sinaloa I, reversing the judgment on the pleadings and remanding for trial, no motion for summary judgment was made. The first motion for judgment based on qualified immunity was made after the conclusion of the plaintiffs case in chief. Although the court ruled as to the subordinate DSOD officials, it did not rule as to Doody until the presentation of all the evidence was complete. The court obviously deemed it important to consider all the evidence before the ruling. Thus, the earliest stage at which the district court deemed it appropriate to rule on qualified immunity for Doody was after the presentation of all the evidence. The district judge observed that the historical facts of what the DSOD officials knew, the action that was taken to breach the dam, and the person who made that decision were not in dispute. He noted that both the plaintiffs and the defendants relied on the same records, but characterized the reasonableness of the action differently. We have recently discussed the dilemma of the appropriate procedure to follow when qualified immunity is not decided at the summary judgment stage, but is presented as a defense at trial. The difficulty presented is what is appropriate for the judge to decide and what should be submitted to the jury when the facts are in dispute. Here, we are not faced with that issue because the essential facts relating to the defense of qualified immunity are not in dispute. It is important to recognize that although facts relating to the underlying issue of whether there was or was not a violation of due process were in" }, { "docid": "7959469", "title": "", "text": "immunity if he is presented with a truly ambiguous scenario in which it is unclear whether or not his conduct would be unlawful, the record here does not reflect that Dunn was confronted with an indisputably ambiguous situation. Because there are material issues of fact about whether Taravella was promised a hearing and whether Dunn knew of that promise, we do not know what situation Dunn faced and, therefore, we do not know whether Dunn faced a situation so ambiguous that a reasonable person would not have known whether his conduct was unlawful. “If there is a material question of fact as to the relevant surrounding circumstances, the question of objective reasonableness is a question for the jury.” Green v. City of New York, 465 F.3d 65, 83 (2d Cir.2006) (“If there is no material question of fact, the court decides the qualified immunity issue as a matter of law”); see Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.2004); see also Husain v. Springer, 494 F.3d 108, 134 (2d Cir.2007) (citing Green and Kerman). “Though ‘[ijmmunity ordinarily should be decided by the court,’ ... that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required....” Oliveira v. Mayer, 23 F.3d [642, 649-50 (2d Cir.1994), cert. denied, 513 U.S. 1076, 115 S.Ct. 721, 130 L.Ed.2d 627 (1995) (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991))]. After receiving “the jury[’s] decision as to] ‘what the facts were that the officer faced or perceived,’ ” the court then may “make the ultimate legal determination of whether qualified immunity attaches on those facts.” Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003) (emphases added); see, e.g., Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.) {“If there are unresolved factual issues which prevent an early disposition of the defense, the jury should decide these issues on special interrogatories. The ultimate legal determination whether ... a reasonable police officer should have known he acted unlawfully” should be made by the court" }, { "docid": "14499206", "title": "", "text": "be constructed.” Id. After Hunter, this Court altered its approach to resolving questions of qualified immunity. See Act Up!/Portland, 988 F.2d at 873. Under the current approach, a district court should decide the issue of qualified immunity as a matter of law when “the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts.” Peng, 335 F.3d at 979-80. Only where “historical facts material to the qualified immunity determination are in dispute” should the district court submit the issue to a jury. Torres v. City of Los Angeles, 548 F.3d 1197, 1211 (9th Cir.2008). Here, the district court found that a “reasonable jury could find a lack of probable cause at this stage,” not because the parties disputed what Heiman and Neil knew about Conner’s actions, but instead because, in the court’s view, those actions were “consistent” with the inference that Conner had committed no crime. In doing so, the Court implicitly acknowledged that no material dispute existed concerning what facts Heiman and Neil knew. Instead, the only material disputes concerned “what inferences properly may [have] be[en] drawn from those historical facts.” Peng, 335 F.3d at 979-80. Accordingly, under Peng, the district court should have decided “whether probable cause existed” when Neil and Heiman arrested Conner, and reserving this question for the jury was error. Id. B. Whether Neil and Heiman Had Probable Cause to Arrest, and Thus Qualified Immunity “The doctrine of qualified immunity protects government officials ‘from li ability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Thus, in order to determine whether qualified immunity protects a government official, a court must decide, first, whether a plaintiff has produced evidence showing that the official violated a constitutional right and, second, whether that right was “clearly established” at the time of the alleged misconduct. Id. at 232," }, { "docid": "23051900", "title": "", "text": "availability of qualified immunity is ultimately committed to the court’s judgment.”) (internal quotation marks omitted); Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir.2005) (\"The issue having now come before us, we hold that the legal question of a defendant's entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury.”); Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir.2004) (\"Immunity, however, is a matter of law for the court, to be decided without deference to the jury’s resolution-and preferably before the case goes to the jury.”); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir.2002) (\"When the case goes to trial, the jury itself decides the issues of historical fact that are determinative of the qualified immunity defense, but the jury does not apply the law relating to qualified immunity to those historical facts it finds; that is the court's duty.”). . See McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir.2000) (“while qualified immunity ordinarily should be decided by the court long before trial, if the issue is not decided until trial the defense goes to the jury which must then determine the objective legal reasonable ness of the officers’ conduct.”); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004) (\"The issue of whether qualified immunity is applicable to an official’s actions is a question of law. However, where the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.”) (internal citations and quotation marks omitted); Ortega v. O'Connor, 146 F.3d 1149, 1156 (9th Cir.1998) (finding no error in \"the district court's 'extra' reasonableness test, which ... constituted an appropriate and proper instruction to the jury on the second prong of the defendants’ qualified immunity defense-whether a reasonable state official could have believed his conduct was lawful-the prong as to which the existence of factual disputes requires the jury’s determination.”); Maestas v. Lujan, 351 F.3d 1001, 1010 (10th Cir.2003) (\"In short, the disputed issues of material fact concerning the objective reasonableness of Mr. Lujan’s actions" }, { "docid": "23159448", "title": "", "text": "immunity standard is generally a factual question for the jury.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993). Following the Supreme Court’s decision in Hunter v. Bryant, 502 U.S. 224, -, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991), we held that in evaluating a claim of qualified immunity, the district court is to make a determination of the objective reasonableness of the official’s act as a matter of law. Lampkin, 7 F.3d at 434-35. Our interpretation of Hunter does not preclude the possibility that a disputed question of fact might still eliminate our jurisdiction to hear an appeal of a denial of summary judgment. “[E]ven though [Hunter ] diminished the jury’s role in qualified immunity cases, it did not entirely abolish it.” Lampkin, 7 F.3d at 430. A denial of summary judgment based on a material factual dispute would still be appropriate if there are “underlying historical facts in dispute that are material to the resolution of the questions whether the defendants acted in an objectively reasonable manner.” Id. The parties in Lampkin disputed whether force was used against the plaintiffs, the amount of time the plaintiffs were detained, and whether any reason existed to detain the plaintiffs. We concluded that this court would be unable to make the determination of the objective reasonableness of the officer’s activities “without settling on a coherent view of what happened in the first place.” Id. In this case, however, there is general agreement as to the factual events that gave rise to this lawsuit. Mangieri was using a bullhorn at full volume when the officers, responding to a disturbance call, witnessed the disturbance for themselves and then proceeded to arrest Mangieri without first admonishing him to stop. The only material factual dispute revolves around the reasonableness of the officer’s decision to arrest Mangieri without first issuing a warning. Motions for summary judgment based on qualified immunity are, in the normal course of events, to be resolved as a matter of law. See Hunter, 502 U.S. at -, 112 S.Ct. at 537 (“Immunity ordinarily should be decided by the court" }, { "docid": "13082381", "title": "", "text": "Katz, 194 F.3d at 967. To determine whether an officer is entitled to the defense of qualified immunity when the use of force is in issue, the question asked is whether a hypothetical officer reasonably could have believed that the amount of force used was reasonable. To resolve the merits of an excessive force claim, the question is whether a reasonable officer could have believed that the force used was necessary under the circumstances. Because of this parity, [this court has] repeatedly held that the inquiry as to whether officers are entitled to qualified immunity for the use of excessive force is the same as the inquiry on the merits of the excessive force claim. Id. at 968 (resolving an apparent intracir-cuit conflict between excessive force cases that equated the inquiry on the merits with the qualified immunity analysis and other cases that suggested the two lines of inquiry are distinct) (internal quotation marks and citations omitted). Whether the trial judge or jury should ultimately decide if an officer is entitled to qualified immunity in a given case “has not been definitely resolved.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1100 (9th Cir.1995) (citing Sloman, 21 F.3d at 1467-69). But where essential historical facts concerning what an official knew or did are in dispute, “it is clear that these are questions of fact for the jury to determine.” Id. at 1099; see also Katz, 194 F.3d at 969 (holding that if disputed facts prevent the court from deciding whether excessive force was used as a matter of law, then the court cannot decide whether officials are entitled to qualified immunity for the use of that force as a matter of law either). Here, because historical facts are in dispute concerning “the amount of force used” and “the circumstances that might justify the amount of force used,” id., the district court erred in granting qualified immunity to Sheriff Lewis and Chief Deputy Sheriff Philp as a matter of law. The disputed facts concerning the amount of force used here include: (1) whether the pepper spray was" }, { "docid": "14499205", "title": "", "text": "early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). While this Court at one time was of the view that district courts should not decide the issue of qualified immunity unless a rational jury could reach only one conclusion, the Supreme Court, in Hunter v. Bryant, rejected that approach for two reasons. 502 U.S. 224, 227-28, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); see also Act Up!/Portland, 988 F.2d at 872. First, the Supreme Court found that such an approach too often failed to protect defendants from the expenses of trial. Hunter, 502 U.S. at 228, 112 S.Ct. 534. Second, the Supreme Court noted that the question is “whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed.” Id. After Hunter, this Court altered its approach to resolving questions of qualified immunity. See Act Up!/Portland, 988 F.2d at 873. Under the current approach, a district court should decide the issue of qualified immunity as a matter of law when “the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts.” Peng, 335 F.3d at 979-80. Only where “historical facts material to the qualified immunity determination are in dispute” should the district court submit the issue to a jury. Torres v. City of Los Angeles, 548 F.3d 1197, 1211 (9th Cir.2008). Here, the district court found that a “reasonable jury could find a lack of probable cause at this stage,” not because the parties disputed what Heiman and Neil knew about Conner’s actions, but instead because, in the court’s view, those actions were “consistent” with the inference that Conner had committed no crime. In doing so, the Court implicitly acknowledged that no material dispute existed concerning what facts Heiman and" }, { "docid": "13492899", "title": "", "text": "and fact. See, e.g., Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir.1995). Whether the defendant actually knew that a subpoena was invalid is a question of fact. Whether the defendant’s belief in the subpoena’s validity was objectively reasonable is itself a mixed question of law and fact. If there are disputed issues of material fact as to the “historical facts of what the [defendant] knew or what he did, it is clear that these are questions of fact for the jury to determine.” Id.; see also Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993). Whether those “historical facts” support an objective belief that the defendant acted reasonably, however, is a question of law to be decided by the court. Act Up!/Portland, 988 F.2d at 873; see also Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Applying these principles to Yahool’s conduct here, we find that Yahoo! is statutorily immune from suit. First, Sams pled no facts sufficient to lead to a plausible inference that Yahoo! actually knew that these subpoenas were invalid. Sams’ sole allegation that Yahoo! did not act in good faith is no more than a threadbare recital of the language of § 2707(e), precisely the kind that we decline to credit. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under Iqbal, such bald legal conclusions are not entitled to be accepted as true and thus “do not suffice” to prevail over a motion to dismiss. Id.; see also Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1020 (9th Cir.2013). Second, Yahool’s production in response to these subpoenas was objectively reasonable as a matter of law. For even assuming, arguendo, that these subpoenas were ultimately invalid, they bore all of the indi-cia of lawful authority. See United States v. Crews, 502 F.3d 1130, 1136-38 (9th Cir.2007) (finding good faith reliance as a matter of law where search warrant affidavit contained sufficient indicia of probable cause on its face); McCready, 453 F.3d at 892 (good faith" }, { "docid": "23051904", "title": "", "text": "are undisputed, then that is a question of law to be reviewed by a court; if not, then it is a question for a jury and summary judgment is improper.”) . We are not suggesting that the objective reasonableness of an officer’s view of the law may be submitted to the jury. Rather, we are recognizing that, when material issues of fact are in dispute, our past precedents, in particular Karnes, Sharrar, and Curley I, have allowed the jury to resolve those disputes and also to determine the objective reasonableness of the officer’s conduct in light of the facts. . We acknowledge again that our language in Curley I left open the possibility of giving that question to the jury. Discussing “the procedure for deciding the immunity question when the existence of disputed issues of fact precludes disposition on summary judgment,” 298 F.3d at 278, we stated: We addressed the issue in Sharrar, in which we observed that the \"reasonableness of the officers' beliefs or actions is not a jury question,” 128 F.3d at 828, but qualified that observation by later noting that a jury can evaluate objective reasonableness when relevant factual issues are in dispute, id. at 830-31. This is not to say, however, that it would be inappropriate for a judge to decide the objective reasonableness issue once all the historical facts are no longer in dispute. A judge may use special jury interrogatories, for instance, to permit the jury to resolve the disputed facts upon which the court can then determine, as a matter of law, the ultimate question of qualified immunity. Id. at 279. We cannot fault the District Court for following our instructions on remand. Unlike our dissenting colleague, we do not view Curley I as making “clear the respective roles of the judge and jury in cases such as this,” post at 224. To the extent Curley I can be read as allowing the District Court to submit the question of qualified immunity to the jury we are hard pressed to say the District Court erred in doing so. We hope, however, that it" }, { "docid": "10868530", "title": "", "text": "its progeny concerning the relevant factors for assessing the limits on police use of force under the Fourth Amendment. 2. Objective Reasonableness In a civil rights action in which qualified immunity is asserted, the reasonableness of an officer’s conduct comes into play both “as an element of the officer’s defense” and “as an element of the plaintiffs case.” Katz, 194 F.3d at 967. To determine whether an officer is entitled to the defense of qualified immunity when the use of force is in issue, the question asked is whether a hypothetical officer reasonably could have believed that the amount of force used was reasonable. To resolve the merits of an excessive force claim, the question is whether a reasonable officer could have believed that the force used was necessary under the circumstances. Because of this parity, [this court has] repeatedly held that the inquiry as to whether officers are entitled to qualified immunity for the use of excessive force is the same as the inquiry on the merits of the excessive force claim. Id. at 968 (resolving an apparent intracir-cuit conflict between excessive force cases that equated the inquiry on the merits with the qualified immunity analysis and other cases that suggested the two lines of inquiry are distinct) (internal quotation marks and citations omitted). Whether the trial judge or jury should ultimately decide if an officer is entitled to qualified immunity in a given case “has not been definitely resolved.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1100 (9th Cir.1995) (citing Sloman, 21 F.3d at 1467-69). But where essential historical facts concerning what an official knew or did are in dispute, “it is clear that these are questions of fact for the jury to determine.” Id. at 1099; see also Katz, 194 F.3d at 969 (holding that if disputed facts prevent the court from deciding whether excessive force was used as a matter of law, then the court cannot decide whether officials are entitled to qualified immunity for the use of that force as a matter of law either). Here, because historical facts are" }, { "docid": "23595167", "title": "", "text": "the rights and duties of the respective parties at the time of the acts complained of — it was objectively reasonable for the official to believe that his acts did not violate those rights “has its principal focus on the particular facts of the case.” Hurlman v. Rice, 927 F.2d 74, 78-79 (2d Cir.1991); see, e.g., Oliveira v. Mayer, 23 F.3d at 649-50. Although a conclusion that the defendant official’s conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts, see, e.g., Lennon v. Miller, 66 F.3d at 421; Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.1993); Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987), if there is such a dispute, the factual questions must be resolved by the factfinder, see, e.g., Kerman II, 261 F.3d at 241; Oliveira v. Mayer, 23 F.3d at 649; Calamia v. City of New York, 879 F.2d 1025, 1036 (2d Cir.1989). “Though ‘[ijmmunity ordinarily should be decided by the court,’ ... that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required .... ” Oliveira v. Mayer, 23 F.3d at 649 (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). After receiving “the jury[’s] ... decision as to] ‘what the facts were that the officer faced or perceived,”’ the court then may “make the ultimate legal determination of whether qualified immunity attaches on those facts.” Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003) (emphases added); see, e.g., Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.) (“If there are unresolved factual issues which prevent an early disposition of the defense, the jury should decide these issues on special interrogatories. The ultimate legal determination whether ... a reasonable police officer should have known he acted unlawfully” should be made by the court “on the facts found” by the jury, (emphasis added)), cert. denied, 498 U.S. 967, 111 S.Ct. 431, 112 L.Ed.2d 414 (1990). In ruling that Crossan was entitled to" }, { "docid": "23316135", "title": "", "text": "reasonable defendant official would have understood that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991). As the third part of the test provides, even where the law is “clearly established” and the scope of an official’s permissible conduct is “clearly defined,” the qualified immunity defense also protects an official if it was “objectively reasonable” for him at the time of the challenged action to believe his acts were lawful. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (explaining Harlow, 457 U.S. at 800, 102 S.Ct. 2727); see also Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.1987). The matter of whether a right was clearly established at the pertinent time is a question of law. In contrast, the matter of whether a defendant official’s conduct was objectively reasonable, i.e., whether a reasonable official would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact. Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir.2004) (citations omitted). Moreover, “[although a conclusion that the defendant official’s conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts, if there is such a dispute, the factual questions must be resolved by the factfinder.” Id. at 109 (citations omitted). “Though ‘immunity ordinarily should be decided by the court,’ that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required .... ” Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir.1994) (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). i. Did Higazy allege a violation of an actual constitutional right? Reviewing this question de novo, we hold that Higazy has properly alleged an actual deprivation of his Fifth Amendment constitutional right against compulsory self-incrimination only as to the second bail hearing, which took place on January 11, 2002. The Fifth Amendment provides that no person “shall be compelled in" }, { "docid": "7912762", "title": "", "text": "facts are undisputed, or if no reasonable juror could find otherwise, then the question is appropriately one for the court. Hunter, 502 U.S. at 227-28, 112 S.Ct. at 536-37. A. Undisputed Facts As we have stated, the facts as to what the defendants knew and the action they took are undisputed in this case. Therefore, the district court properly decided this issue as a matter of law. The district court concluded that the subordinate DSOD employees were entitled to qualified immunity as a matter of law because the evidence showed that they did not have the ultimate decision-making authority to breach the dam. We agree. It was Doody who made the ultimate decision to breach the dam; therefore, it is what he knew and the action he took that is at issue in determining qualified immunity. The evidence at trial revealed the knowledge upon which Doody based his decision. Doody knew that heavy rains between February 25 and March 3 caused the water level behind the dam to rise. On March 2, two slides occurred on the face of the dam. By 11:00 p.m. that night, the City of Simi Valley had evacuated nearly all of the downstream residents. On March 3, the DSOD sent David Jacinto, a 10-year veteran civil engineer for the DSOD, and Sheldon McEwan, also a DSOD engineer, to inspect the dam. At 8:00 a.m. that morning, Jacinto announced that the DSOD was in control of the incident. Jacinto testified that the March 2 slide area stretched over 200 feet, about a quarter of the length of the dam embankment. Efforts were made to lower the water level and relieve pressure on the dam. On March 4, two assistant chiefs of the DSOD, James Ley and Roger Stephenson, advised Doody that the dam was unsafe and recommended that it should be breached. Doody phoned Ley early March 6 and instructed him to not take any steps in breaching the dam because Doody wanted to discuss the possibility of the SLOA breaching the dam. Ley acted in Doody’s absence while Doody was in Washington, D.C., for a" }, { "docid": "23089779", "title": "", "text": "is a material dispute as to the facts regarding what the officer or the plaintiff actually did, the case must proceed to trial, before a jury if requested.”) (citing Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993)); Thompson v. Mahre, 110 F.3d 716, 719 (9th Cir. 1997) (“[W]here there is a genuine issue of fact on a substantive issue of qualified immunity, ordinarily the controlling principles of summary judgment and, if there is a jury demand and a material issue of fact, the Seventh Amendment, require submission to a jury.”); see also Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994) (explaining that the reasons for the existence of the qualified immunity doctrine “do not ... suggest that a judicial determination at [the trial] stage is necessarily better than a jury verdict” (emphasis in original)). Indeed, we have explained that “sending the factual issues to the jury but reserving to the judge the ultimate ‘reasonable officer’ determination leads to serious logistical difficulties.” Sloman, 21 F.3d at 1468. Defendants contend that our decision in Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir.2003), supports their contention that a court, not a jury, must decide the qualified immunity issue here. We disagree. In Peng, the district court had determined at the summary judgment stage that the defendant officer was entitled to qualified immunity. Id. at 972-73. On appeal, Peng argued, first, that the existence of disputes of fact precluded the district court from granting summary judgment on the issue of qualified immunity, and, second, that because more than one reasonable inference could be drawn from the undisputed facts regarding the existence of probable cause, the question of probable cause was one for the jury and not the court. Id. at 978-79. Rejecting both arguments, this court held that the factual disputes were not material to the qualified immunity issue, id., and that, “where the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts, it is appropriate for this court to decide whether probable cause existed at" }, { "docid": "23089780", "title": "", "text": "Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir.2003), supports their contention that a court, not a jury, must decide the qualified immunity issue here. We disagree. In Peng, the district court had determined at the summary judgment stage that the defendant officer was entitled to qualified immunity. Id. at 972-73. On appeal, Peng argued, first, that the existence of disputes of fact precluded the district court from granting summary judgment on the issue of qualified immunity, and, second, that because more than one reasonable inference could be drawn from the undisputed facts regarding the existence of probable cause, the question of probable cause was one for the jury and not the court. Id. at 978-79. Rejecting both arguments, this court held that the factual disputes were not material to the qualified immunity issue, id., and that, “where the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts, it is appropriate for this court to decide whether probable cause existed at the time [the officer] arrested Peng,” id. at 979-80, 335 F.3d 970 (emphasis added). However, in this case historical facts material to the qualified immunity determination are in dispute. Disputes of fact exist as to whether Diana positively identified Torres, whether school police officer Steinberg told Officer Lamar and/or Detective Hickman that Torres had “recently been jumped into the CPA gang,” and whether it was reasonable for the detectives to believe that in the group photo Torres was making a gang sign despite the fact that only one of Torres’ fingers is visible in the photo. These disputes of fact are material because they go to what the detectives knew at the time they arrested Torres and, accordingly, to whether they had probable cause, and reasonably believed they had probable cause, to do so. Taking these facts in the light most favorable to Torres, a reasonable officer would have known that he lacked probable cause for the arrest. Accordingly, Peng does not help Defendants. With respect to the first Saucier question, we have already determined" }, { "docid": "7912759", "title": "", "text": "qualified immunity for Doody was after the presentation of all the evidence. The district judge observed that the historical facts of what the DSOD officials knew, the action that was taken to breach the dam, and the person who made that decision were not in dispute. He noted that both the plaintiffs and the defendants relied on the same records, but characterized the reasonableness of the action differently. We have recently discussed the dilemma of the appropriate procedure to follow when qualified immunity is not decided at the summary judgment stage, but is presented as a defense at trial. The difficulty presented is what is appropriate for the judge to decide and what should be submitted to the jury when the facts are in dispute. Here, we are not faced with that issue because the essential facts relating to the defense of qualified immunity are not in dispute. It is important to recognize that although facts relating to the underlying issue of whether there was or was not a violation of due process were in dispute, the essential facts concerning the defense of qualified immunity were not in dispute. Once a law enforcement officer asserts qualified immunity, “the district court must determine whether, in light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful.” Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). This requires a two-step analysis: “1) Was the law governing the official’s conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?” Id. An official is entitled to qualified immunity even where reasonable officers could disagree as to the lawfulness of the official’s conduct, so long as that conclusion is objectively reasonable. Id. at 872. The threshold determination of whether the law is clearly established is a question of law for the court. See id. at 871. The second part of the test, whether a reasonable state official could have believed the action taken was lawful, is a mixed question of law and fact. It involves an objective" }, { "docid": "7912761", "title": "", "text": "test of whether a reasonable official could have believed that his conduct was lawful in light of what he knew and the action he took. If there are genuine issues of material fact in issue relating to the historical facts of what the official knew or what he did, it is clear that these are questions of fact for the jury to determine. The difficult issue is whether, when there are disputed issues of historical fact, the entire second mixed question of law and fact should be submitted to the jury under appropriate instructions as we do in negligence cases or whether the jury should be instructed only to find the historical facts with the judge to make the ultimate determination. This issue was discussed most recently in Sloman v. Tadlock, 21 F.3d 1462, 1467-69 (9th Cir.1994), noting Act Up!/Port land and Judge Norris’s dissent from failure of the court to hear that case en banc. As observed in Sloman, 21 F.3d at 1468, that issue has not been definitively resolved. However, where the essential facts are undisputed, or if no reasonable juror could find otherwise, then the question is appropriately one for the court. Hunter, 502 U.S. at 227-28, 112 S.Ct. at 536-37. A. Undisputed Facts As we have stated, the facts as to what the defendants knew and the action they took are undisputed in this case. Therefore, the district court properly decided this issue as a matter of law. The district court concluded that the subordinate DSOD employees were entitled to qualified immunity as a matter of law because the evidence showed that they did not have the ultimate decision-making authority to breach the dam. We agree. It was Doody who made the ultimate decision to breach the dam; therefore, it is what he knew and the action he took that is at issue in determining qualified immunity. The evidence at trial revealed the knowledge upon which Doody based his decision. Doody knew that heavy rains between February 25 and March 3 caused the water level behind the dam to rise. On March 2, two slides occurred" } ]

[ { "docid": "829912", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, Senior District Judge. The instant action, brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (FDCPA), requires the Court to determine whether language in two notices sent to the plaintiff by the defendant in an attempt to collect a debt is unfair, unconscionable or deceptive. The first notice in issue was sent on December 26,1984, and includes the following: Will you be able to get credit when you really need it? In case of emergency will you be denied credit because of this unpaid account we have for collection: DO NOT TAKE A CHANCE — Send the balance today. (Complaint, Exhibit A). Plaintiff contends that the foregoing language is an unfair/unconscionable means of collection prohibited by § 1692f in that it implies that the outstanding debt will result in an inability to obtain credit when it might be essential, in an emergency. Moreover, plaintiff argues, the notice impermissibly blurs the distinction between the Credit Bureau’s collecting and reporting divisions. The latter argument is also made in connection with the next notice, dated February 14, 1985, containing this statement: Our computer will be reporting this unpaid collection account to our members— banks, department stores, mortgage companies, utility companies, etc. for seven (7) years. (Complaint Exhibit B). In addition, plaintiff claims that the February 14 notice is a violation of § 1692e, which prohibits false or misleading representations in attempting to collect a debt. The alleged misrepresentation is found in the purported implication that the Credit Bureau generally disseminates the names of delinquent debtors to its members, which is prohibited by 15 U.S.C. § 1681b(3), the statute regulating credit reporting agencies. In its motion for summary judgment, defendant relies upon Wright v. Credit Bureau of Georgia, 555 F.Supp. 1005 (N.D.Georgia, 1983), in which the district court held that a communication from a collection agency that merely informs a debtor that his credit rating may someday be affected by failure to pay the debt is not a violation of the FDCPA. Defendant contends that such is the effect of the disputed notices. In addition, defendant" } ]

[ { "docid": "7593596", "title": "", "text": "POSNER, Circuit Judge. This appeal from the grant of summary judgment to the defendant, a lawyer named Norman Wexler, presents questions regarding both the meaning of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., and the minimum showing required to defeat a motion for summary judgment. The Act forbids a debt collector, which Wexler is conceded to be, to “use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” 15 U.S.C. § 1692e, including “the false representation or implication that any individual is an attorney or that any communication is from an attorney.” 15 U.S.C. § 1692e(3). A lawyer who merely rents his letterhead to a collection agency violates the Act, 15 U.S.C. § 1692j(a); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1235-38 (5th Cir.1997); cf. White v. Goodman, 200 F.3d 1016, 1018 (7th Cir.2000), for in such a case the lawyer is allowing the collection agency to impersonate him. The significance of such impersonation is that a debtor who receives a dunning letter signed by a lawyer will think that a lawyer reviewed the claim and determined that it had at least colorable merit; so if no lawyer did review the claim, the debtor will have been deceived and the purpose of the Act therefore thwarted. Similarly, a lawyer who, like Wexler, is a debt collector violates section 1692e(3) (and also section 1692e(10), which forbids “the use of any false representation or deceptive means to collect or attempt to collect any debt”) if he sends a dunning letter that he has not reviewed, since his lawyer’s letterhead then falsely implies that he has reviewed the creditor’s claim. Avila v. Rubin, 84 F.3d 222, 228-29 (7th Cir.1996); United States v. National Financial Services, Inc., 98 F.3d 131, 135-37 (4th Cir.1996); Clomon v. Jackson, 988 F.2d 1314, 1320-21 (2d Cir.1993). “A debt collection letter on an attorney’s letterhead conveys authority and credibility.” Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir.1989). The plaintiffs received dunning letters signed “Wexler & Wexler,” the name under which the defendant practices" }, { "docid": "9853707", "title": "", "text": "HAVEN’T WE HEARD FROM YOU? OUR RECORDS STILL SHOW THIS AMOUNT OWING. If not paid TODAY, it may STOP YOU FROM OBTAINING credit TOMORROW. PROTECT YOUR CREDIT REPUTATION. SEND PAYMENT TODAY. DO NOT DISREGARD THIS NOTICE. YOUR CREDIT MAY BE ADVERSELY AFFECTED. CONTACT US IMMEDIATELY. The notice also read: “[t]his has been sent to you by a collection agency and is an attempt to collect a debt and any information obtained will be used for that purpose.” Wade responded by suing RCA, alleging that its unlicensed collection activity violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o, and Idaho’s Consumer Protection Act, I.C. §§ 48-601-617. The district court denied her motion for summary judgment and granted summary judgment to RCA. ANALYSIS: Wade argues that the court erred in rejecting her FDCPA claim and erred in dismissing her state law claims. We review the summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). 1. The FDCPA The purposes of the FDCPA are “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Congress passed the Act in light of the “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” Id. § 1692(a). It found that these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Id. 2. Wade’s Claims under the FDCPA Wade argues that RCA violated several provisions of the Act, including Section 1692e, which generally prohibits “false, deceptive or misleading” collection activities; Section 1692e(5), prohibiting threats “to take any action that cannot legally be taken or that is not intended to be taken”; Section 1692e(10), which forbids “the use of any false representation or deceptive means to collect or attempt to collect any" }, { "docid": "19121338", "title": "", "text": "also proscribes the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The statute provides the following with respect to false or misleading representations: Without limiting the general application of the foregoing, the following conduction is a violation of this section: ... (2) The false representation of - (A) the character, amount, or legal status of any debt... (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.... 15 U.S.C. § 1692e(2)(A) and (5). The FDCPA also makes it unlawful to “use unfair or unconscionable means to collect or attempt to collect any debt,” including “[t]he collection of any amount (including any interest, fee, charge, or expenses incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(l). In evaluating whether communications or conduct violates the FDCPA, courts utilize the so-called “least sophisticated debtor” standard. Taylor v. Perrin, Landry, de Launay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997); Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993); Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028-29 (6th Cir.1992); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir.1991); Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1225-26 (9th Cir.1988); see also Gammon v. GC Services L.P., 27 F.3d 1254 (7th Cir.1994) (“unsophisticated consumer” standard). The Seventh Circuit has stated that “[a]nyway it’s viewed, the standard is low,” Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996), and the phrase unsophisticated or least sophisticated debtor is used “to describe the hypothetical consumer whose reasonable perceptions will be used to determine if collection messages are deceptive or misleading.” Gammon, 27 F.3d at 1257. The court observed that the standard protects consumers who are “of below average sophistication or intelligence” or are “uniformed, naive or trusting” while at the same time the reasonableness element “shields complying debt collectors from liability for unrealistic or peculiar interpretations of collection letters.” Id. Violation of any provision of" }, { "docid": "1383723", "title": "", "text": "using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The question in this case is whether Defendant engaged in deceptive or misleading debt collection practices by attaching Vick’s affidavit to the complaint. The parties agree that in determining whether a debt collection practice is deceptive or misleading, that practice “must be viewed objectively from the standpoint of the ‘least sophisticated consumer.’ ” Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997). See also Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 400 (6th Cir.1998). This standard “protects all consumers, the gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993). However, it also presumes that the consumer possesses “a rudimentary amount of information about the world” and is willing “to read a collection notice with some care.” Id. at 1319. As the Second Circuit noted in Clomon, this standard serves the dual purpose of protecting all consumers, including “the naive and the trusting,” from deceptive debt collection practices, and protecting debt collectors “against liability for bizarre or idiosyncratic interpretations of collection notices.” Id. at 1320. As noted earlier, creditors, in Ohio, are not permitted to recover attorney fees in connection with debt collection actions involving personal, family, or household debt. Plaintiff concedes that the complaint Defendant filed against her in state court does not mention attorney fees. On its face, it prays only for damages “in the amount of $2,040.98 with interest ... and costs of the within action.” Plaintiff also admits that $2,040.98 is the exact balance she owed to Direct Merchants on her credit card account; therefore, it is impossible that the amount of the debt was padded to include hidden attorney fees. The affidavit attached to the complaint, however, states that the cardmember agreement provides that Direct Merchants “is entitled to recover, to the extent permitted by applicable law, its reasonable attorney’s fees.” Plaintiff argues that, after reading the complaint in conjunction with the affidavit, the “least sophisticated consumer” would be confused about whether she" }, { "docid": "22147811", "title": "", "text": "the debt collector’s address, on any envelope when communicating with a consumer by use of mails ... except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.” Pursuant to Federal Rule of Civil Procedure 12(b)(6), DCS brought a motion to dismiss Ms. Strand’s claim. The district court granted the motion, declining to adopt a strict reading of § 1692f(8). The court reasoned the letters and symbols on the envelopes were benign insofar as they did not reveal they pertained to a debt collection. For the following reasons, we agree and therefore affirm. II We review de novo a district court’s decision to grant a motion to dismiss. Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir.2002). Under Rule 12(b)(6), we must accept Ms. Strand’s factual allegations as true and grant every reasonable inference in her favor. Id. at 464; Fed.R.Civ.P. 12(b)(6). A motion to dismiss should be granted “as a practical matter ... only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, that there is some insuperable bar to relief.” Frey v. Herculaneum, 44 F.3d 667, 671 (8th Cir.1995) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974)). At the very least, however, the complaint must contain facts which state a claim as a matter of law and must not be conclusory. Id. A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which is “designed to protect consumers of below average sophistication or intelligence without having the standard tied to ‘the very last rung on the sophistication ladder.’ ” Duffy v. Landberg, 215 F.3d 871, 874 (8th Cir.2000) (quoting Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997)). This standard protects the uninformed or naive consumer, yet also contains an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection letters. Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1054-1055 (8th Cir.2002). Section 1692f, in pertinent part, states: A" }, { "docid": "16857112", "title": "", "text": "means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The statute provides the following with respect to false or misleading representations: Without limiting the general application of the foregoing, the following conduction is a violation -of this section: ... (2) The false representation of— (A) the character, amount, or legal status of any debt... * * * * * * (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.... 15 U.S.C. § 1692e(2)(A) and (5). The FDCPA also makes it unlawful to “use unfair or unconscionable means to collect or attempt to collect any debt,” including “[t]he collection of any amount (including any interest, fee, charge, or expenses incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). In evaluating whether communications or conduct violates the FDCPA, courts utilize the so-called “least sophisticated debtor” standard. Taylor v. Perrin, Landry, de Launay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997); Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993); Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028-29 (6th Cir.1992); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir.1991); Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1225-26 (9th Cir.1988); see also Gammon v. GC Services L.P., 27 F.3d 1254 (7th Cir.1994) (“unsophisticated consumer” standard). The Seventh Circuit has stated that “[a]nyway it’s viewed, the standard is low,” Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996), and the phrase unsophisticated or least sophisticated debtor is used “to describe the hypothetical consumer whose reasonable perceptions will be used to determine if collection messages are deceptive or misleading.” Gammon, 27 F.3d at 1257. The court observed that the standard protects consumers who are “of below average sophistication or intelligence” or are “uniformed, naive or trusting” while at the same time the reasonableness element “shields complying debt collectors from liability for unrealistic or peculiar interpretations of collection letters.” Id. Violation of any provision of the FDCPA entitles the consumer to an" }, { "docid": "22566952", "title": "", "text": "district court’s rulings on the parties’ cross motions for summary judgment. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir.2010). Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court reviews the evidence and draws all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). IV. DISCUSSION A. Bona Fide Error Defense In 1977, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA prohibits, inter alia, debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f. Debt collectors may collect only amounts that are “expressly authorized by the agreement creating the debt or permitted by law.” Id. § 1692f(l). Moreover, “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. The FDCPA provides for a civil cause of action to enforce its provisions, with debt collectors who violate the Act liable for actual damages, statutory damages up to $1,000, and reasonable attorney’s fees and costs. See Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.2009) (citing 15 U.S.C. § 1692k(a)(1)-(3)). This appeal concerns only whether ICS or Owen was entitled to summary judgment as to ICS’s affirmative defense of bona fide error. In reviewing the parties’ cross motions for summary judgment, we assume, arguendo, that ICS committed the FDCPA violations alleged by Owen." }, { "docid": "1383722", "title": "", "text": "Hartman v. Asset Acceptance Corp., No. 1:03-cv-113, 2004 U.S. Dist. LEXIS 24845 (S.D.Ohio Sept. 29, 2004)(rejecting claims of absolute witness immunity and litigation privilege); Blevins v. Hudson & Keyse, Inc., 395 F.Supp.2d 655 (S.D.Ohio 2004)(same); Delawder v. Platinum Fin. Servs. Corp., No. 1:04-cv-680 (S.D. Ohio April 29, 2005)(Record at 22; Supp. Authority submitted by Defendant) (same) ; Kelly v. Great Seneca Fin. Corp., No. 1:04-cv-615 (S.D. Ohio June 16, 2005)(same); Todd v. Weltman, Weinberg & Reis Co., LPA, 348 F.Supp.2d 903 (S.D.Ohio 2004)(rejecting claim of witness immunity in connection with FDCPA suit). In each of those cases, my colleagues discussed at length their reasons for rejecting the claims of immunity, and it would be pointless for me to. repeat what they have already stated so eloquently. Suffice it to say that I agree with the reasoning expressed in those opinions and find no merit to Defendant’s claims of immunity. The Court now turns to the merits of Plaintiffs alleged violations of the FDCPA. c. Merits of the Alleged Violations The FDCPA prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The question in this case is whether Defendant engaged in deceptive or misleading debt collection practices by attaching Vick’s affidavit to the complaint. The parties agree that in determining whether a debt collection practice is deceptive or misleading, that practice “must be viewed objectively from the standpoint of the ‘least sophisticated consumer.’ ” Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997). See also Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 400 (6th Cir.1998). This standard “protects all consumers, the gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993). However, it also presumes that the consumer possesses “a rudimentary amount of information about the world” and is willing “to read a collection notice with some care.” Id. at 1319. As the Second Circuit noted in Clomon, this standard serves the dual purpose of protecting all consumers, including “the naive and the trusting,”" }, { "docid": "19134598", "title": "", "text": "send dunning letters bearing his name and a facsimile of his signature — even though he did not personally review either the individual letters or the files of the consumers to whom the letters were sent. Id. at 1316. The Second Circuit concluded that the attorney thereby violated subsection 1692e(3) because “the collection letters were not ‘from’ [the defendant] in any meaningful sense of that word.” Id. at 1320. Driving this conclusion, in part, was the court’s finding that the “use of an attorney’s signature implies — at least in the absence of language to the contrary— that the attorney signing the letter formed an opinion about how to manage the case of the debtor to whom the letter was sent.” Id. at 1321. This construction of subsection 1692e(3) has since been adopted by four other circuits. See, e.g., Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 1003 (3d Cir.2011); Kistner v. Law Offices of Michael P. Margelefsky, 518 F.3d 433, 438-41 (6th Cir.2008); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir.1997); Avila v. Rubin, 84 F.3d 222 (7th Cir.1996). The Seventh Circuit explained the rationale for the doctrine this way: “An unso phisticated consumer, getting a letter from an ‘attorney,’ knows the price of poker has just gone up.” Avila, 84 F.3d at 229. The district court granted summary judgment to Nelson & Kennard on Tourgeman’s claim under subsection 1692e(3). It assumed that the meaningful involvement doctrine was applicable, see Tourgeman, 2012 WL 3731807, at *6, perhaps because in an earlier decision in the case — when the action was before another district judge on Nelson & Kennard’s motion to dismiss the complaint- — that judge had adopted the doctrine. See Tourgeman, 2011 WL 3176453, at *8-9. In ruling on the summary judgment motion, however, the district court found it undisputed that the attorney who signed the collection letters was meaningfully involved, and granted judgment to Nelson & Kennard on the meaningful involvement claim. 2012 WL 3731807, at *6-7. We need not determine whether to adopt a construction of section" }, { "docid": "22926826", "title": "", "text": "for the misconduct alleged.” Id. It follows that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not *show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). When deciding whether a debt collection letter violates the FDCPA, this court “must evaluate any potential deception in the letter under an unsophisticated or least sophisticated consumer standard.” Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir.2004); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997). We must “assume that the plaintiff-debtor is neither shrewd nor experienced in dealing with creditors.” Goswami, 377 F.3d at 495. “At the same time we do not consider the debtor as tied to the very last rung on the [intelligence or] sophistication ladder.” Id. (internal quotation marks omitted) (alteration in original). “This standard serves the dual purpose of protecting all consumers, including the inexperienced, the untrained and the credulous, from deceptive debt collection practices and protecting debt collectors against liability for bizarre or idiosyncratic consumer interpretations of collection materials.” Taylor, 103 F.3d at 1236. III. DISCUSSION Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA provides, “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. The statute then lists several activities that violate the FDCPA. See id. § 1692e(1)-(16). Gonzalez claims that Kay and the Kay Law Firm violated subsections (3) and (10). Subsection (3) prohibits “[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney.” Id. § 1692e(3). Subsection (10) prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to" }, { "docid": "22926827", "title": "", "text": "collection practices and protecting debt collectors against liability for bizarre or idiosyncratic consumer interpretations of collection materials.” Taylor, 103 F.3d at 1236. III. DISCUSSION Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA provides, “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. The statute then lists several activities that violate the FDCPA. See id. § 1692e(1)-(16). Gonzalez claims that Kay and the Kay Law Firm violated subsections (3) and (10). Subsection (3) prohibits “[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney.” Id. § 1692e(3). Subsection (10) prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Id. § 1692e(10). There is no dispute that Gonzalez is a “consumer” under the FDCPA and that Kay and the Kay Law Firm are “debt collectors” under the Act. See id. § 1692a(3), (6). A debt collector who violates the FDCPA is liable for actual damages, additional damages of up to $1,000, and attorneys’ fees. See id. § 1692k. There are sound policy reasons for the FDCPA’s prohibition on a debt collector sending a collection letter that is seemingly from an attorney. Judge Evans of the Seventh Circuit adroitly explained the intimidation inherent in this type of communication: An unsophisticated consumer, getting a letter from an “attorney,” knows the price of poker has just gone up. And that clearly is the reason why the dunning campaign escalates from the collection agency, which might not strike fear in the heart of the consumer, to the attorney, who is better positioned to get the debtor’s knees knocking. Avila v. Rubin, 84 F.3d 222, 229 (7th Cir.1996). A letter from a lawyer implies" }, { "docid": "17622147", "title": "", "text": "not have altered Judge Sprizzo’s decision. Plaintiffs timely appealed the dismissal of their TILA and FDCPA claims against The Money Store. DISCUSSION “We review a district court’s grant of summary judgment de novo,” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002), and apply “the same standards applied by the district court,” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir.2011). “Summary judgment may be granted only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). In determining whether there is a genuine dispute as to a material fact, we resolve all ambiguities and draw all inferences in favor of the non-moving party. Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir.2012). I. FDCPA Liability We start with plaintiffs’ FDCPA claims against The Money Store. Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To further these ends, the FDCPA “establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection.” De-Santis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir.2001). As is relevant here, section 1692e of the FDCPA provides generally that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. In addition, “[wjithout limiting the general application of the foregoing,” section 1692e proscribes sixteen specific debt collection practices, including “[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney.” Id. § 1692e(3). Under our prior precedent, the plaintiffs have a triable claim that Moss Codilis’s breach letters violated section 1692e’s prohibition on the “use of false, deceptive, or misleading representation[s] ... in con nection with" }, { "docid": "17622217", "title": "", "text": "creditor, and that Household was therefore liable under § 1692a(6) for falsely implying third-party involvement. Id. at 638-39. In other words, the panel simultaneously held Dickerson liable as a debt collector and held Household liable for falsely implying the involvement of a debt collector. I do not find this reasoning persuasive. The Fifth Circuit’s opinion in Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir.1997), meanwhile, is wholly consistent with my reasoning and stands for the unremarkable proposition that a creditor employing a flat-rater may trigger the false-name exception. Taylor involved a creditor who, while attempting to collect debts itself, used a form letter created by a law firm and bearing that firm’s letterhead and signature. Id. at 1235. Unlike Moss Codilis, the law firm had no involvement in the collection process other than furnishing the letterhead and form. This hence presented an obvious example of flat-rating. The creditor constituted a debt collector under 15 U.S.C. § 1692a(6) because it was using another’s name, and was further liable under 15 U.S.C. § 1692e(3) because it falsely implied that its collection letter was from an attorney. Meanwhile, the law firm was liable under § 1692j for furnishing the form. Taylor, 103 F.3d at 1237. The majority departs from this straightforward application of the FDCPA. It articulates its reformulated test for determining whether a creditor has used another’s name so as deceptively to suggest this third party’s involvement in collecting the creditor’s debts as “whether the third party is making bona fide attempts to collect the debts of the creditor or whether it is merely operating as a ‘conduit’ for a collection process that the creditor controls.” Maj. Op. at 103. But this “bona fide ” collection standard appears nowhere in the text of the FDCPA. And unless the majority intends it as simply the inverse of § 1692j’s flat-rating standard — an implausible construction of § 1692j — the “bona fide ” standard creates an odd liability gap within the FDCPA: parties like Moss Co-dilis may be too involved in collection to be flat-raters under § 1692j, but" }, { "docid": "11776968", "title": "", "text": "an extraordinarily broad statute. Congress addressed itself to what it considered to be a widespread problem, and to remedy that problem it crafted a broad statute. Gangwish would have us ignore this fact and read an exception into the statute that is nowhere to be found in its text. This we cannot do, even though the exception he would have us adopt may be an eminently sensible one. We must enforce this statute as Congress has written it. As written, sections 1692g(a) and 1692e(ll) apply to Gangwish’s post-judgment letter. As a result, his failure to include the notice and disclosures required by those sections constitutes violations of those sections as a matter of law. We therefore REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion. . The Fourth Circuit has recently joined the Second Circuit in holding that follow-up notices are subject to the disclosure requirements of section 1692e(11). Carroll v. Wolpoff & Abramson, 961 F.2d 459, 461 (4th Cir.1992), petition for cert. filed, (U.S. June 24, 1992) (No. 91-2057). SUHRHEINRICH, Circuit Judge, dissenting. Congress enacted the Fair Debt Collection Practices (“FDCPA”), 15 U.S.C. § 1692 et seq., “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses.” Id. at § 1692(e). Under the aegis of the plain meaning rule, the majority interprets the FDCPA in a manner that, in my view, not only incorrectly applies that doctrine of statutory construction, but also imposes severe and unnecessary burdens on ethical debt collectors. The majority first turns its plain meaning analysis on the FDCPA’s validation notice requirement, 15 U.S.C. § 1692e(ll). This section compels debt collectors to include a validation notice in any “initial communication with a consumer in connection with the collection of any debt.” Id. The majority fails to observe, however, that Gangwish’s letter cannot be an “initial communication” with Frey. The majority attempts to circumvent this dilemma by observing" }, { "docid": "17622216", "title": "", "text": "does not “send” the forms to the debtor, nor is the flat-rater the one that actually “uses” the forms to deceive the debtor. This is all in addition, of course, to § 1692j’s admonition that whoever’s name is on the deceptive form must not also be participating in the debt collection. Id. Given the lack of support in either our own decisions or the text of the FDCPA for the conclusion it reaches here, the majority understandably looks to the case law of other circuits. The cases it cites, however, are either inapposite or unpersuasive. While the Seventh Circuit’s opinion in Nielsen v. Dickerson, 307 F.3d 623 (7th Cir.2002), supports the majority’s approach to the false name exception, it also exemplifies the contradictory conclusions that courts reach by conflating § 1692a(6) with § 1692e(3). In Nielsen, the Seventh Circuit determined that the debt collection letter at issue, was not really “from” Dickerson as an attorney, and that Dickerson was therefore liable under § 1692e(3); it also determined that the letter was actually “from” Household, the creditor, and that Household was therefore liable under § 1692a(6) for falsely implying third-party involvement. Id. at 638-39. In other words, the panel simultaneously held Dickerson liable as a debt collector and held Household liable for falsely implying the involvement of a debt collector. I do not find this reasoning persuasive. The Fifth Circuit’s opinion in Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir.1997), meanwhile, is wholly consistent with my reasoning and stands for the unremarkable proposition that a creditor employing a flat-rater may trigger the false-name exception. Taylor involved a creditor who, while attempting to collect debts itself, used a form letter created by a law firm and bearing that firm’s letterhead and signature. Id. at 1235. Unlike Moss Codilis, the law firm had no involvement in the collection process other than furnishing the letterhead and form. This hence presented an obvious example of flat-rating. The creditor constituted a debt collector under 15 U.S.C. § 1692a(6) because it was using another’s name, and was further liable under 15 U.S.C. §" }, { "docid": "22926825", "title": "", "text": "meaning that this court has jurisdiction under 28 U.S.C. § 1291. “This court reviews a district court’s dismissal under Rule 12(b)(6) de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008) (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. It follows that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not *show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). When deciding whether a debt collection letter violates the FDCPA, this court “must evaluate any potential deception in the letter under an unsophisticated or least sophisticated consumer standard.” Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir.2004); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997). We must “assume that the plaintiff-debtor is neither shrewd nor experienced in dealing with creditors.” Goswami, 377 F.3d at 495. “At the same time we do not consider the debtor as tied to the very last rung on the [intelligence or] sophistication ladder.” Id. (internal quotation marks omitted) (alteration in original). “This standard serves the dual purpose of protecting all consumers, including the inexperienced, the untrained and the credulous, from deceptive debt" }, { "docid": "3591986", "title": "", "text": "POSNER, Chief Judge. One of the practices that the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., forbids is “flat-rating,” the term popularly applied to providing a form which creates the false impression that someone (usually a collection agency) besides the actual creditor is “participating” in collecting the debt. § 1692j(a); see S.Rep.No. 95-382, 95th Cong. 1st Sess. 5 (1977), U.S. Code Cong. & Admin.News 1977 pp. 1695, 1699. (The provider of the form presumably charges a “flat rate” for the form; hence the popular name for the practice.) The element of deception lies less in the misrepresentation that a third-party debt collector is involved than in the signal, conveyed by turning over a debt for collection, that the creditor does not intend to drop the matter. Congress’s concern was that such deception might induce debtors to abandon legitimate defenses. Whether the concern was well founded is not for us to say. The flat-rater is thus not the creditor, but the counterpart of a contributory infringer in the law of intellectual property; he furnishes a deceptive instrumentality to the primary violator. Another provision of the Act, 15 U.S.C. § 1692a(6), brings the latter within the scope of liability by forbidding a creditor, in the collection of his debts, to use a name which suggests the involvement of a third party, unless the third party is participating in the debt collection, for then there is no deception. Conceivably this provision could be read so narrowly as to reach only the case in which the creditor is using a pseudonym; but this reading, as the cases interpreting section 1692a(6) make clear, Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir.1998); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir.1997), is too narrow. A separate provision forbids the use of a pseudonym by a debt collector, 15 U.S.C. § 1692e(14), and while a debt collector is not a creditor the section we have just cited indicates that the statute distinguishes between the use of pseudonyms, on the one hand, and a false representation that" }, { "docid": "8747594", "title": "", "text": "DENNIS, Circuit Judge: This is a review of the district court’s summary judgment dismissing a suit by Charles Ray Taylor against Perrin, Landry, deLaunay & Durand (PLdD), Allan L. Du-rand, and USI Financial Services, Inc. (USI) under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. We reverse and remand the case to the district court for further proceedings. 1. The Fair Debt Collection Practices Act (FDCPA) was enacted “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Congress found that existing state and federal laws were inadequate to fully address the problem caused by debt collectors using unfair or deceptive practices. These abuses contributed to personal bankruptcies, marital instability, loss of jobs, and invasions of individual privacy. 15 U.S.C. § 1692(a); see Tang Thanh Trai Le, Protecting Consumer Rights §' 10.15 (1987). The Act applies principally to “debt collectors”. There are several ways a person may act as a “debt collector” or otherwise become subject to the provisions of the FDCPA. In its primary definition, the term “debt collector” means “any person who uses any instrumentality of interstate commerce or the mails in any business, the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term does not ordinarily include creditors who, directly or indirectly, try to collect debts owed them. The Act specifically provides, however, that “debt collector” does include any creditor who, in the process of collecting his' own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. 15 U.S.C. § 1692a(6); Le, § 10.16. Further, the FDCPA provides that it is unlawful to design, compile, and furnish any form knowing that such form would" }, { "docid": "14468241", "title": "", "text": "1355, 1361-62 (S.D.Fla.2000); see also Russell v. Equifax, 74 F.3d 30, 33-34 (2nd Cir.1996). A single violation of § 1692e is sufficient to establish civil liability. See 15 U.S.C. § 1692k(a); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir.1997). Under the FDCPA, a debt collector may not “threat[en] to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). Moreover, a debt collector is prohibited from using “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(10). Two different standards have developed for analyzing claims under §§ 1692e(5) and 1692e(10) of the FDCPA: the “least sophisticated debtor” standard or the “unsophisticated consumer” standard. Compare Jeter, 760 F.2d at 1175-76 (11th Cir.1985); Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir.1996); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1226-27 (9th Cir.1988); Van Westrienen v. Amencontinental Collection Corp., 94 F.Supp.2d 1087, 1098-1102 (D.Or.2000); Marchant v. U.S. Collections W., Inc., 12 F.Supp.2d 1001, 1006 (D.Ariz.1998); with United States v. National Fin. Servs., Inc., 820 F.Supp. 228, 232 (D.Md.1998), aff'd, 98 F.3d 131 (4th Cir.1996) with Nance v. Friedman, 2000 WL 1700156, *2 (N.D.Ill.2000); Veillard v. Mednick, 24 F.Supp.2d 863, 866 (N.D.Ill.1998); and Withers v. H.R. Eveland, 988 F.Supp. 942, 946 (E.D.Va.1997). Both standards are quite similar. The Eleventh Circuit follows the “least sophisticated debtor” standard, which analyzes whether a hypothetical least sophisticated consumer would be deceived or misled by the debt collector’s practices. See Jeter, 760 F.2d at 1175 (citation omitted). The Eleventh Circuit in Jeter limited the application of the “least sophisticated debt- or” standard to cases involving false or misleading representations in violation of § 1692e(10). The court did not apply the standard to § 1692e(5) because “the sophistication, or lack thereof, of the consumer [was] irrelevant to whether [defendant] ‘threatened to take any action ... that was not intended to be taken.’ ” Id. At first blush, it appears that the court held" }, { "docid": "14468240", "title": "", "text": "it was a debt collector, when it was not registered with the Florida Department of Banking. Defendant, on the other hand, argues that it did not violate the FCCPA by mailing a collection letter while it was not registered with the Florida Department of Banking. Moreover, defendant argues that even if it did violate the Florida statute, it did not violate the FDCPA by merely failing to register with the Florida Department of Banking before it mailed the letter. Congress enacted the FDCPA to: eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. 15 U.S.C. § 1692(e). The FDCPA was “not intended to shield ... consumers from the embarrassment and inconvenience which are the natural consequences of debt collection.” Dalton v. FMA Enters., Inc., 953 F.Supp. 1525, 1531 (M.D.Fla.1997) (citation omitted). The FDCPA is a strict liability statute. See Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1361-62 (S.D.Fla.2000); see also Russell v. Equifax, 74 F.3d 30, 33-34 (2nd Cir.1996). A single violation of § 1692e is sufficient to establish civil liability. See 15 U.S.C. § 1692k(a); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir.1997). Under the FDCPA, a debt collector may not “threat[en] to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). Moreover, a debt collector is prohibited from using “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(10). Two different standards have developed for analyzing claims under §§ 1692e(5) and 1692e(10) of the FDCPA: the “least sophisticated debtor” standard or the “unsophisticated consumer” standard. Compare Jeter, 760 F.2d at 1175-76 (11th Cir.1985); Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir.1996); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1226-27 (9th Cir.1988); Van Westrienen v. Amencontinental Collection Corp., 94 F.Supp.2d" } ]